THIRD RESTATED CERTIFICATE OF INCORPORATION

                                       OF

                             THE TJX COMPANIES, INC.

 

      (Originally incorporated on April 9, 1962 under the name Zayre Corp.)

 

         FIRST: The name of this corporation is

 

                             THE TJX COMPANIES, INC.

 

         SECOND: Its registered office in the State of Delaware is located at

1013 Centre Road, in the City of Wilmington, County of New Castle. The name and

address of its registered agent is the United States Corporation Company, 1013

Centre Road, Wilmington, Delaware 19805.

 

         THIRD: The nature of the business of this corporation and the objects

or purposes to be transacted, promoted and carried on by it are as follows:

 

         1.       To engage generally in business in the field of merchandising,

whether wholesale or retail or both.

 

         2.       To buy, design, develop, manufacture, produce, lease or

otherwise acquire, and to prepare, finish or otherwise process, and to own,

hold, use, store and transport, and to sell at wholesale or retail, transfer,

distribute, export, consign, lease or otherwise dispose of, and generally to

deal in and with, all kinds of merchandise, clothing, articles, equipment,

supplies, goods, wares, foods, drugs, cosmetics and other articles of whatever

nature.

 

         3.       To buy, construct, lease or otherwise acquire, and to own,

hold, operate, manage, lease to others, grant or take concessions for, develop,

improve, maintain and use, and to manage for others and to act as consultants

with respect to, and to sell, convey or otherwise dispose of, stores,

warehouses, shopping centers, parking lots, retail outlets and other facilities

for use in connection with wholesale and retail merchandising, and land,

buildings, facilities, equipment and all other property and assets for or

incidental to any of the foregoing.

 

         4.       To carry on any manufacturing, selling, management, service or

other business, operation or activity which is lawful to be carried on by a

corporation organized under the General Corporation Law of the State of Delaware

as amended, whether or not similar or related or incidental to or useful or

advantageous in or in connection with the businesses, operations and activities

referred to in the foregoing paragraphs.

 

         5.       To manufacture, produce, buy, lease or otherwise acquire, and

to own, operate and use, and to sell, lease or otherwise dispose of, and

generally to deal with and in, machinery, appliances, equipment, tools, parts,

fixtures, facilities, motor vehicles, materials, supplies, goods, merchandise

and other articles and property of all kinds incidental to or useful

 

 

 

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in or in connection with any business, operation or activity in which this

corporation is engaged or is authorized to engage.

 

         6.       To buy, construct, lease or otherwise acquire, and to own,

hold, operate, develop, improve, maintain and use, and to sell, convey, lease or

otherwise dispose of, and to grant easements, rights or interests in, lands,

real estate, easements, leaseholds and other rights or interests in real estate,

plants, structures, building equipment and real estate improvements incidental

to or useful in or in connection with any business, operation or activity in

which this corporation is engaged or is authorized to engage.

 

         7.       To apply for, obtain, keep in force and comply with all

licenses and permits from governmental authorities and others which are deemed

requisite or desirable in or in connection with any business, operation or

activity in which this corporation is engaged or desires or is authorized to

engage.

 

         8.       To apply for, obtain, register, devise, adopt, purchase,

lease, take licenses or rights under or otherwise acquire, and to hold, own,

develop, maintain, protect, operate under, exercise and use, and to grant

licenses or rights under, sell, assign, transfer or otherwise dispose of, and

generally to deal in and with, patents, trademarks, copyrights, inventions,

improvements, processes, formulae, trade names, designs and similar properties

and rights, and applications, registrations, reissues, renewals, licenses and

other rights and interests for, in, to or under the same, and franchises,

powers, rights, privileges, grants, concessions, immunities and guaranties from

public authorities or others, all in or under the laws of the United States of

America or any state or other government, country or place.

 

         9.       To subscribe for, purchase or otherwise acquire, and to hold

and own, and to sell, assign, transfer or otherwise dispose of, and generally to

deal in and with, securities, and while the holder or owner thereof to have and

exercise all rights, powers and privileges of ownership, including the right to

vote or consent or give proxies or powers of attorney therefor, and to carry on

any business, operation or activity through a wholly or partly owned subsidiary.

 

         10.      To acquire by purchase, exchange, merger or consolidation or

otherwise all or any part of the property and assets, including the business,

good will, rights and franchises, of any corporation, association, trust, firm

or individual wherever organized, created or located, and in payment or exchange

therefor to pay cash, transfer property and issue securities to the transferor

or its security holders and to assume or become liable for any liabilities and

obligations, and to hold and operate or in any manner to dispose of all or any

part of the property and assets so acquired.

 

         11.      To dispose by sale, exchange, merger or consolidation or

otherwise of all or any part of the property and assets, including the business,

good will, rights and franchises of this corporation, to any corporation,

association, trust, firm or individual wherever organized, created or located,

for cash or property, including securities, or the assumption of the liabilities

and obligations of this corporation, and if desired, and subject to the rights

of

 

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creditors and preferred stockholders, to distribute such cash, securities or

other property to the security holders of this corporation in exchange for or in

partial or complete liquidation or redemption of their securities.

 

         12.      To borrow money and obtain credit, and in consideration of

money borrowed or for the purpose of sale or pledge or in order to pay, evidence

or secure any liability or obligation, to execute, issue and deliver and sell,

pledge or otherwise dispose of bonds, notes, debentures or other evidences of

indebtedness, secured or unsecured, and to give security for any such bonds,

notes, debentures or other evidences of indebtedness or for any purchase price,

guaranty, line of credit, covenant, fidelity or performance bond or any other

liability or obligation and any premium, interest and other sums due thereon or

therewith and any covenants or obligations connected therewith; and for the

foregoing purposes to mortgage or pledge or execute an indenture of mortgage or

deed of trust upon or create a lien upon or other security title or security

interest in all or any part of the property and assets, real and personal, of

this corporation, then owned or thereafter acquired.

 

         13.      To lend money, credit or security to, and to guarantee or

assume any liabilities and obligations of, and to aid in any other manner, any

corporation, association, trust, firm or individual, wherever organized, created

or located, any of whose securities are held by this corporation or in whose

affairs or prosperity this corporation has a lawful interest, and to do all acts

and things designed to protect, improve or enhance the value of such securities

or interest.

 

         14.      To execute, issue and deliver and to sell or otherwise dispose

of securities of this corporation convertible into other securities, and

options, warrants or rights to subscribe for or purchase securities of this

corporation, to issue any of such options, warrants or rights to any employees

of this corporation, and to maintain, operate and carry on for the benefit of

any employees any pension, retirement, profit-sharing, bonus, health,

disability, savings, loan, insurance, educational, social, recreational or

similar plans or arrangements.

 

         15.      To make contributions for charitable, scientific or

educational purposes or for the public welfare or for public purposes, including

contributions to corporations, trusts, funds or foundations organized and

operated for any such purposes, and including any such foundation organized by

this corporation or by its directors or officers, and including contributions to

governments or governmental bodies or agencies for public purposes, and any

contributions which at the time are allowed as deductions from corporate gross

income under the United States Internal Revenue Code as amended.

 

         16.      To do any and all acts and things in this Article Third set

forth to the same extent as an individual might or could do, as principal,

factor, consignee, agent, contractor or otherwise, and either alone or in

conjunction or jointly with any corporation, association, trust, firm or

individual, and, in general, to do any and all acts and things and to engage in

any and all businesses whatsoever, necessary, suitable, advantageous or proper

for or in connection with or incidental to the exercise, transaction, promotion,

carrying on, accomplishment or

 

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attainment of any of the businesses, powers, purposes or objects in this Article

Third set forth, excepting in every case all acts, things and business forbidden

by law.

 

         17.      In this Article Third the word "securities" includes, to the

extent that the context permits, stocks, shares, bonds, notes, debentures and

other evidences of interest in or indebtedness of any corporation, association,

trust or firm wherever organized, created or located, and notes and other

evidences of indebtedness of any individual wherever located, and bonds, notes,

debentures and other evidences of indebtedness of any country, state, county,

city, town or other governmental body or agency wherever organized, created or

located.

 

         18.      In this certificate of incorporation, unless it is otherwise

expressly provided, the conjunctive includes the disjunctive and the singular

includes the plural, and vice versa; verbs in the present or future include both

present and future or either; the whole includes any part or parts; no mention

or inclusion of any particular example or specific enumeration shall be deemed

to limit any general meaning; the statements of the businesses, objects and

purposes of this corporation shall be construed both as objects and powers; the

enumeration of specific powers shall not be held to limit or restrict in any

manner the exercise by this corporation of the general powers conferred upon

corporations by the laws of the State of Delaware, and no statement of any

business, object or purpose shall be deemed to limit or be exclusive of any

other stated business, object or purpose, but all are separate and cumulative

and all may be transacted, promoted and carried on separately or together and at

any time and from time to time, and any business, object or purpose may be

transacted, promoted or carried on, and any property may be owned or held, in

any part of the world; and references to the certificate of incorporation mean

the provisions of the certificate of incorporation (as that term is defined in

the General Corporation Law of the State of Delaware) of this corporation as

from time to time in effect, and references to the by-laws or to any requirement

or provision of law mean the by-laws of this corporation or such requirement or

provision of law as from time to time in effect.

 

         FOURTH: The total number of shares of capital stock of all classes

which this Corporation shall have authority to issue shall be three hundred five

million (305,000,000) shares, consisting of three hundred million (300,000,000)

shares of Common Stock of the par value of one dollar ($1.00) per share,

amounting in aggregate to three hundred million dollars ($300,000,000), and five

million (5,000,000) shares of Preferred Stock of the par value of one dollar

($1.00) per share, amounting in the aggregate to five million dollars

($5,000,000).

 

         The holders of the Common Stock shall be entitled to one vote for each

share of Common Stock registered in the name of such holder, and there shall be

no cumulative voting in elections for directors. The holders of the Common Stock

shall be entitled to such dividends as may from time to time be declared by the

Board of Directors, but only when and as declared by the Board of Directors out

of any funds legally available for declaration of dividends, and subject to any

provisions of this Certificate of Incorporation, as amended from time to time,

or of resolutions of the Board of Directors adopted pursuant to authority herein

contained, requiring that dividends be declared and/or paid upon the outstanding

shares of Preferred Stock of any series or upon the outstanding shares of any

other class of capital stock ranking senior

 

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<PAGE>   5

 

 

 

to the Common Stock as to dividends as a condition to the declaration and/or

payment of any dividend on the Common Stock; but no such provisions shall

restrict the declaration or payment of any dividend or distribution of the

Common Stock payable solely in shares of Common Stock. In the event of the

liquidation, dissolution or winding up of the affairs of the corporation, the

holders of the Common Stock shall be entitled to share pro rata in the net

assets available for distribution to holders of Common Stock after satisfaction

of the prior claims of the holders of shares of Preferred Stock of any series

and shares of any other class of capital stock ranking senior to the Common

Stock as to assets, in accordance with the provisions of this Certificate of

Incorporation, as amended from time to time, or of resolutions of the Board of

Directors adopted pursuant to authority herein contained.

 

         The Board of Directors is hereby authorized from time to time to

provide by resolution for the issuance of shares of Preferred Stock in one or

more series not exceeding the aggregate number of shares of Preferred Stock

authorized by this Certificate of Incorporation, as amended from time to time,

and to determine with respect to each such series, the voting powers, if any

(which voting powers if granted may be full or limited), designations,

preferences, the relative, participating, optional or other rights, and the

qualifications, limitations and restrictions appertaining thereto, including,

without limiting the generality of the foregoing, the voting rights appertaining

to shares of Preferred Stock of any series (which may be one vote per share or a

fraction of a vote per share, and which may be applicable generally or only upon

the happening and continuance of stated events or conditions), the rate of

dividend to which holders of Preferred Stock of any series may be entitled

(which may be cumulative or noncumulative), the rights of holders of Preferred

Stock of any series in the event of the liquidation, dissolution or winding up

of the affairs of the Corporation and the rights (if any) of holders of

Preferred Stock of any series to convert or exchange such shares of Preferred

Stock of such series for shares of Common Stock or for shares of Preferred Stock

of any other series or for shares of any other class of capital stock (including

the determination of the price or prices or the rate or rates applicable to such

rights to convert or exchange and the adjustments thereof, the time or times

during which the right to convert or exchange shall be applicable and the time

or times during which a particular price or rate shall be applicable).

 

         Before the corporation shall issue any shares of Preferred Stock of any

series, a certificate setting forth a copy of the resolution or resolutions of

the Board of Directors fixing the voting powers, designations, preferences, the

relative, participating, optional and other rights, and the qualifications,

limitations and restrictions appertaining to the shares of Preferred Stock of

such series, and the number of shares of Preferred Stock of such series

authorized by the Board of Directors to be issued, shall be made under seal of

the corporation and signed by the president or a vice-president and by the

secretary or an assistant secretary of the corporation and acknowledged by such

president or vice-president as provided by the laws of the State of Delaware and

shall be filed and a copy thereof recorded in the manner prescribed by the laws

of the State of Delaware.

 

         NO PRE-EMPTIVE RIGHTS. No stockholder of this corporation shall have

any pre-emptive or preferential right to purchase or subscribe to any shares of

any class of this corporation now

 

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<PAGE>   6

 

 

 

or hereafter to be authorized, or any notes, debentures, bonds or other

securities convertible into, or carrying options or warrants to purchase, shares

of any class now or hereafter to be authorized, whether or not the issue of any

such shares or such notes, debentures, bonds or other securities would adversely

affect the dividend or voting rights of such stockholder, other than such

rights, if any, as the board of directors in its discretion from time to time

may grant and at such price as the board of directors in its discretion may fix;

and the board of directors may issue shares of any class of this corporation, or

any notes, debentures, bonds or other securities convertible into or carrying

options or warrants to purchase shares of any class, or options to purchase

shares of any class, without offering any such shares or securities or options,

either in whole or in part, to the existing stockholders of any class.

 

SERIES E CUMULATIVE CONVERTIBLE PREFERRED STOCK. There has been created a series

of cumulative convertible Preferred Stock of the Corporation having the voting

powers, designations, preferences, the relative, participating, optional and

other rights, and the qualifications, limitations and restrictions appertaining

thereto in addition to those set forth elsewhere in this Certificate of

Incorporation, as follows:

 

         1. DESIGNATION AND NUMBER. The designation of Preferred Stock shall be

Series E Cumulative Convertible Preferred Stock, $1.00 par value per share, of

The TJX Companies, Inc. (the "Series E Preferred Stock"), and the number of

shares constituting such series shall be 1,500,000, which number may not be

increased but may be decreased (but not below the number of shares of Series E

Preferred Stock then outstanding) from time to time by the Board of Directors.

 

        All shares of Series E Preferred Stock which shall have been issued and

reacquired in any manner by the Corporation (excluding, until the Corporation

elects to retire them, shares which are held as treasury shares but including

shares redeemed, shares purchased and retired, shares converted pursuant to

Section 4 hereof and shares exchanged for any other security of the Corporation)

shall not be reissued and shall, upon the making of any necessary filing with

the Secretary of State of Delaware have the status of authorized but unissued

shares of the Corporation's Preferred Stock, without designation as to series,

and thereafter may be issued, but not as shares of Series E Preferred Stock.

 

2. DIVIDEND RIGHTS.

 

         a. General. The holders of shares of Series E Preferred Stock shall be

entitled to receive, in preference to the holders of shares of Common Stock and

any other stock ranking as to dividends junior to the Series E Preferred Stock,

when and as declared by the Board of Directors, out of funds legally available

therefor, cumulative cash dividends, accruing from and after the date of

original issuance of the Series E Preferred Stock at an annual rate of $7.00 per

share, and no more, as long as shares of Series E Preferred Stock remain

outstanding. Dividends shall be payable quarterly in arrears, on January 1,

April 1, July 1 and October 1 in each year commencing on the first of such four

dates which follows the date of initial issuance of the Series E Preferred Stock

(each, a "Dividend Payment Date"). Each dividend will be

 

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<PAGE>   7

 

 

 

payable to holders of record as they appear on the stock register of the

Corporation on the record date therefor, not exceeding 60 days nor less than 10

days preceding the payment date thereof, as shall be fixed by the Board of

Directors. Dividends in arrears may be declared and paid at any time, without

reference to any Dividend Payment Date, to holders of record on such date, not

exceeding 60 days preceding the payment date thereof, as may be fixed by the

Board of Directors of the Corporation. Dividends payable on the Series E

Preferred Stock (i) for any period greater or less than a full dividend period,

shall be computed on the basis of a 360-day year consisting of twelve 30-day

months and (ii) for each full quarterly dividend period, shall be computed by

dividing the annual dividend rate by four. Dividends on shares of Series E

Preferred Stock shall be cumulative and shall accrue on a daily basis from the

date of original issuance thereof whether or not there shall be funds legally

available for the payment thereof and whether or not such dividends are

declared. Holders of shares of the Series E Preferred Stock shall not be

entitled to any dividend, whether payable in cash, property or stock, in excess

of Full Cumulative Dividends on such shares. No interest or sum of money in lieu

of interest shall be payable in respect of any dividend payment or payments

which may be in arrears.

 

         b. Requirements for Dividends on Senior Preferred Stock. The

Corporation shall not (i) declare or pay or set apart for payment any dividends

or distributions on shares of Series E Preferred Stock (other than dividends

paid in shares of stock ranking junior to any series of Preferred Stock ranking

senior to the Series E Preferred Stock as to dividends) or (ii) make any

purchase or redemption of, or any sinking fund payment for the purchase or

redemption of, shares of Series E Preferred Stock (other than a purchase or

redemption made by issue or delivery of any stock ranking junior to any series

of Preferred Stock ranking senior to the Series E Preferred Stock as to

dividends or upon liquidation, dissolution or winding up) unless Full Cumulative

Dividends on all outstanding shares of any series of Preferred Stock ranking

senior to Series E Preferred Stock through the most recent dividend payment date

prior to the date of payment of such dividend or distribution, or effective date

of such purchase, redemption or sinking fund payment, shall have been paid in

full or declared and a sufficient sum set apart for payment thereof.

 

         c. Requirements for Dividends on Parity Preferred Stock. If there shall

be outstanding shares of any other class or series of Preferred Stock ranking on

a parity with the Series E Preferred Stock as to dividends, no dividends, except

as described in the next sentence, shall be declared or paid or set apart for

payment on any such other series for any period unless Full Cumulative Dividends

on the Series E Preferred Stock through the most recent Dividend Payment Date

have been or contemporaneously are declared and paid or declared and a sum

sufficient for the payment thereof is set apart for such payment. If dividends

on the Series E Preferred Stock and on any other series of Preferred Stock

ranking on a parity as to dividends with the Series E Preferred Stock are in

arrears, all dividends declared upon shares of the Series E Preferred Stock and

all dividends declared upon such other series shall be declared pro rata so that

the amounts of dividends per share declared on the Series E Preferred Stock and

such other series shall in all cases bear to each other the same ratio that Full

Cumulative

 

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<PAGE>   8

 

 

 

Dividends per share at the time on the shares of Series E Preferred Stock and on

such other series bear to each other.

 

         d. Requirements for Dividends on Junior Stock. The Corporation shall

not (i) declare or pay or set apart for payment any dividends or distributions

on any stock ranking as to dividends junior to the Series E Preferred Stock

(other than dividends paid in shares of stock ranking junior to the Series E

Preferred Stock as to dividends) or (ii) make any purchase or redemption of, or

any sinking fund payment for the purchase or redemption of, any stock ranking as

to dividends or upon liquidation, dissolution or winding up junior to the Series

E Preferred Stock (other than a purchase or redemption made by issue or delivery

of any stock ranking junior to the Series E Preferred Stock as to dividends or

upon liquidation, dissolution or winding up) unless Full Cumulative Dividends on

all outstanding shares of Series E Preferred Stock through the most recent

Dividend Payment Date prior to the date of payment of such dividend or

distribution, or effective date of such purchase, redemption or sinking fund

payment, shall have been paid in full or declared and a sufficient sum set apart

for payment thereof; provided, however, that unless prohibited by the terms of

any other outstanding series of Preferred Stock, any moneys theretofore

deposited in any sinking fund with respect to any Preferred Stock of the

Corporation in compliance with this Section 2(d) and the provisions of such

sinking fund may thereafter be applied to the purchase or redemption of such

Preferred Stock in accordance with the terms of such sinking fund regardless of

whether at the time of such application Full Cumulative Dividends on all

outstanding shares of Series E Preferred Stock through the most recent Dividend

Payment Date shall have been paid in full or declared and a sufficient sum set

apart for payment thereof.

 

3. LIQUIDATION PREFERENCES.

 

         a. Senior Preferred Stock. In the event of any liquidation, dissolution

or winding up of the Corporation, whether voluntary or involuntary, before any

payment or distribution of the assets of the Corporation (whether from capital

or surplus) shall be made to or set apart for the holders of the Series E

Preferred Stock upon liquidation, dissolution or winding up, the holders of each

class or series of Preferred Stock ranking senior to the Series E Preferred

Stock upon liquidation, dissolution or winding up shall be entitled to receive

full payment of their liquidation preferences.

 

         b. Order of Payments among Parity Preferred Stock. In the event of any

liquidation, dissolution or winding up of the Corporation, whether voluntary or

involuntary, before any payment or distribution of the assets of the Corporation

(whether from capital or surplus) shall be made to or set apart for the holders

of any class or series of stock of the Corporation ranking junior to the Series

E Preferred Stock upon liquidation, dissolution or winding up, the holders of

the shares of Series E Preferred Stock and the holders of each other class or

series of Preferred Stock ranking on a parity with Series E Preferred Stock upon

liquidation, dissolution or winding up shall be entitled to receive liquidation

payments according to the following priorities:

 

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<PAGE>   9

 

 

 

First,

 

         The holders of the shares of Series E Preferred Stock shall receive

$100 per share and the holders of shares of each such other class or series of

Preferred Stock shall receive the full respective liquidation preferences

(including any premiums) to which they are entitled; and

 

Second,

 

         The holders of shares of Series E Preferred Stock and the holders of

shares of each such other class or series of Preferred Stock shall each receive

an amount equal to Full Cumulative Dividends with respect to their respective

shares through and including the date of final distribution to such holders, but

such holders shall not be entitled to any further payment.

 

        No payment (in either of the First step or Second step provided above)

on account of any liquidation, dissolution or winding up of the Corporation

shall be made to holders of any such other class or series of Preferred Stock or

to the holders of Series E Preferred Stock unless there shall likewise be paid

at the same time to the holders of the Series E Preferred Stock and the holders

of each such other class or series of Preferred Stock like proportionate amounts

of the same payments (as to each of the First step or the Second step above),

such proportionate amounts to be determined ratably in proportion to the full

amounts to which the holders of all outstanding shares of Series E Preferred

Stock and the holders of all outstanding shares of each such other class or

series of Preferred Stock are respectively entitled (in either the First step or

the Second step, as the case may be) with respect to such distribution.

 

        For purposes of this Section 3, neither a consolidation or merger of the

Corporation with or into another corporation nor a merger of any other

corporation with or into the Corporation or a sale or transfer of all or any

part of the Corporation's assets for cash, securities or other property will be

deemed a liquidation, dissolution or winding up of the Corporation.

 

         c. Junior Stock. After payment shall have been made in full to the

holders of Series E Preferred Stock and to the holders of each such other class

or series of Preferred Stock as provided in this Section 3 upon liquidation,

dissolution or winding up of the Corporation, any other series or class or

classes of stock ranking junior to the Series E Preferred Stock upon

liquidation, dissolution or winding up shall, subject to the respective terms

and provisions (if any) applying thereto, be entitled to receive any and all

assets remaining to be paid or distributed upon such liquidation, dissolution or

winding up, and the holders of Series E Preferred Stock shall not be entitled to

share therein.

 

4. CONVERSION.

 

         a. Automatic Conversion. Unless earlier converted at the option of the

holder in accordance with the provisions of Section 4(b), on the Automatic

Conversion Date each outstanding share of the Series E Preferred Stock shall

convert automatically (the "Automatic Conversion") into (i) shares of Common

Stock at the Exchange Rate in effect on the Automatic

 

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<PAGE>   10

 

 

 

Conversion Date and (ii) the right to receive an amount in cash equal to Full

Cumulative Dividends on such share to the Automatic Conversion Date.

 

         b. Optional Conversion by Holder. Shares of Series E Preferred Stock

may be converted, in whole or in part, at the option of the holder thereof

("Optional Conversion"), at any time after the Initial Issuance Date and not

later than the close of business on the Business Day prior to the Automatic

Conversion Date, into shares of Common Stock at the Upper Exchange Rate.

 

         Optional Conversion of shares of Series E Preferred Stock may be

effected by delivering certificates evidencing such shares, together with

written notice of conversion and a proper assignment of such certificates to the

Corporation or in blank (and, if applicable, payment of an amount equal to the

dividend payable on such shares), to the office of any transfer agent for the

Series E Preferred Stock or to any other office or agency maintained by the

Corporation for that purpose and otherwise in accordance with the Optional

Conversion procedures established by the Corporation. Each Optional Conversion

shall be deemed to have been effected immediately prior to the close of business

on the date on which the foregoing requirements shall have been satisfied (the

"Optional Conversion Date").

 

         c. Mechanics of Conversion.

 

         i.       Upon surrender in accordance with the aforesaid provisions of

the certificate for any shares so converted (duly endorsed or accompanied by

appropriate instruments of transfer), the holder of record of such shares shall

be entitled to receive the applicable number of shares of Common Stock

(calculated to the nearest 1/1,000,000th of a share) (and cash representing

fractional share settlements in respect thereof) at the applicable Exchange Rate

plus Full Cumulative Dividends thereon, without interest.

 

         ii.      Before any holder of shares of Series E Preferred Stock shall

receive certificates for shares of Common Stock in respect of the conversion of

shares of Series E Preferred Stock (or cash representing fractional share

settlements in respect thereof) such holder shall surrender the certificate or

certificates of shares of Series E Preferred Stock duly endorsed if required by

the Corporation, at the office of the Corporation and, if certificates for

shares of Common Stock are to be received by such holder, shall state in writing

the name or names and the denominations in which such holder wishes the

certificate or certificates for the Common Stock to be issued. The Corporation

will, as soon as practicable after receipt thereof, issue and deliver to such

holder, or such holder's designee or designees, a certificate or certificates

for the number of shares of Common Stock to which such holder shall be entitled

as aforesaid, together with a certificate or certificates representing any

shares of Series E Preferred Stock which are not to be converted, but which

shall have constituted part of the certificate or certificates for shares of

Series E Preferred Stock so surrendered.

 

         iii.     The Corporation's obligation to deliver shares of Common Stock

and provide funds upon conversion in accordance with this Section 4 shall be

deemed fulfilled if, on or

 

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<PAGE>   11

 

 

 

before a conversion date, the Corporation shall deposit with a bank or trust

company, or an affiliate of a bank or trust company, having an office or agency

in New York, New York and having a capital and surplus of at least $50,000,000

according to its last published statement of condition, or shall set aside or

make other reasonable provision for the issuance of, such number of shares of

Common Stock as are required to be delivered by the Corporation pursuant to this

Section 4 upon the occurrence of the related conversion of Series E Preferred

Stock and for cash required to be paid in lieu of the issuance of fractional

share amounts and Full Cumulative Dividends payable in cash on the shares of

Series E Preferred Stock to be converted as required by this Section 4, in trust

for the account of the holders of such shares of Series E Preferred Stock to be

converted (and so as to be and continue to be available therefor), with (in the

case of deposits with a bank or trust company) irrevocable instructions and

authority to such bank or trust company that such shares and funds be delivered

upon conversion of the shares of Series E Preferred Stock so to be converted. If

on the Automatic Conversion Date shares of Common Stock and funds (if any)

necessary for the conversion shall have been irrevocably either set aside by the

Company separate and apart from its other funds or assets in trust for the

account of the holders of the shares of Series E Preferred Stock to be converted

(and so as to be and continue to be available therefor) or the Company shall

have made other reasonable provision therefor, then, notwithstanding that the

certificates evidencing any shares of the Series E Preferred Stock so subject to

conversion shall not have been surrendered, the shares represented thereby shall

be deemed no longer outstanding, dividends with respect to such shares shall

cease to accrue on the date fixed for conversion (provided that holders of

shares of Series E Preferred Stock at the close of business on a record date for

any payment of dividends shall be entitled to receive Full Cumulative Dividends

payable on such shares on the corresponding Dividend Payment Date

notwithstanding the conversion of such shares following such record date and

prior to such Dividend Payment Date) and all rights with respect to such shares

shall forthwith after such date cease and terminate, except for the rights of

the holders to receive the shares of Common Stock and funds (if any) payable

pursuant to this Section 4 without interest upon surrender of their certificates

therefor. Holders of shares of Series E Preferred Stock at the close of business

on a dividend payment record date shall be entitled to receive the dividend

payable on such shares on the corresponding Dividend Payment Date

notwithstanding the Optional Conversion of such shares following such record

date and prior to such Dividend Payment Date. However, shares of Series E

Preferred Stock surrendered for Optional Conversion after the close of business

on a dividend payment record date and before the opening of business on the

corresponding Dividend Payment Date must be accompanied by payment in cash of an

amount equal to the dividend payable on such shares on such Dividend Payment

Date. A holder of shares of Series E Preferred Stock on a dividend record date

who (or whose transferee) surrenders any such shares for conversion into shares

of Common Stock on the corresponding Dividend Payment Date will receive the

dividend payable by the Corporation on such shares of Series E Preferred Stock

on such Dividend Payment Date, and the converting holder need not include

payment of the amount of such dividend upon surrender of shares of Series E

Preferred Stock for conversion. Except as provided above, upon any conversion of

shares of Series E Preferred Stock, the Corporation shall make no payment or

allowance for unpaid dividends, whether or not in arrears, on such shares of

Series

 

                                      -11-

 

 

 

 

<PAGE>   12

 

 

 

E Preferred Stock as to which conversion has been effected or for dividends or

distributions on the shares of Common Stock issued upon such conversion.

 

         iv.      Holders of shares of Series E Preferred Stock that are

converted shall not be entitled to receive dividends declared and paid on such

shares of Common Stock, and such shares of Common Stock shall not be entitled to

vote, until such shares of Common Stock are issued upon the surrender of the

certificates representing such shares of Series E Preferred Stock and upon such

surrender such holders shall be entitled to receive such dividends declared and

paid on such shares of Common Stock subsequent to such conversion date. Amounts

payable in cash in respect of the shares of Series E Preferred Stock or in

respect of such shares of Common Stock shall not bear interest.

 

         v.       Each conversion of shares of Series E Preferred Stock into

Common Stock shall be deemed to have been made as of the close of business on

the applicable conversion date, so that the rights of the holder of such shares

of Series E Preferred Stock shall, to the extent of such conversion, cease at

such time and the person or persons entitled to receive shares of the Common

Stock upon conversion of such shares shall be treated for all purposes as having

become the record holder or holders of the Common Stock at such time; provided,

however, that if an event that results in an adjustment to the Exchange Rate is

declared or occurs with respect to the shares of Common Stock, and the record

date for any such action is on or after the close of business on the date on

which notice of such conversion is given, but prior to the close of business on

the date of such conversion, then the person or persons entitled to receive

shares of the Common Stock upon conversion of shares of Series E Preferred Stock

shall be treated for purposes of such action as having become the record holder

or holders of the Common Stock at the close of business on the Trading Day next

preceding the date on which notice of such conversion is given.

 

         vi.      The Corporation will pay any and all taxes that may be payable

in respect of the issuance or delivery of shares of Common Stock upon conversion

of shares of Series E Preferred Stock pursuant hereto. The Corporation shall

not, however, be required to pay any tax which may be payable in respect of any

transfer involved in the delivery of shares registered in a name other than the

name in which such shares of Series E Preferred Stock were formerly registered,

and no such issue or delivery shall be made unless and until the person

requesting such issue or delivery has paid to the Corporation the amount of any

such tax, or has established, to the satisfaction of the Corporation, that such

tax has been paid.

 

         d. Adjustments to the Exchange Rate. The Exchange Rate shall be subject

to adjustment from time to time as provided below in this paragraph (d).

 

         (1)      If the Corporation shall pay or make a dividend or other

         distribution with respect to its Common Stock in shares of Common Stock

         (including by way of reclassification of any shares of its Common

         Stock) to all holders of Common Stock, the Exchange Rate in effect at

         the opening of business on the day following the date fixed for the

         determination of stockholders entitled to receive such dividend or

         other

 

                                      -12-

 

 

 

 

<PAGE>   13

 

 

 

         distribution shall be increased by multiplying such Exchange Rate by a

         fraction of which the numerator shall be the sum of the number of

         shares of Common Stock outstanding at the close of business on the date

         fixed for such determination plus the total number of shares of Common

         Stock constituting such dividend or other distribution, and of which

         the denominator shall be the number of shares of Common Stock

         outstanding at the close of business on the date fixed for such

         determination, such increase to become effective immediately after the

         opening of business on the day following the date fixed for such

         determination.

 

         (2)      In case outstanding shares of Common Stock shall be subdivided

         into a greater number of shares of Common Stock, the Exchange Rate in

         effect at the opening of business on the day following the day upon

         which such subdivision becomes effective shall be proportionately

         increased, and, conversely, in case outstanding shares of Common Stock

         shall be combined into a smaller number of shares of Common Stock, the

         Exchange Rate in effect at the opening of business on the day following

         the day upon which such combination becomes effective shall be

         proportionately reduced, such increases or reductions, as the case may

         be, to become effective immediately after the opening of business on

         the day following the day upon which such subdivision or combination

         becomes effective.

 

         (3)      If the Corporation shall, after the date hereof, issue rights

         or warrants, in each case other than the Rights, to all holders of its

         Common Stock entitling them (for a period not exceeding 45 days from

         the date of such issuance) to subscribe for or purchase shares of

         Common Stock at a price per share less than the Fair Market Value of

         the Common Stock on the record date for the determination of

         stockholders entitled to receive such rights or warrants, then in each

         case the Exchange Rate shall be adjusted by multiplying the Exchange

         Rate in effect on such record date, by a fraction of which the

         numerator shall be the number of shares of Common Stock outstanding on

         the date of issuance of such rights or warrants, immediately prior to

         such issuance, plus the number of additional shares of Common Stock

         offered for subscription or purchase pursuant to such rights or

         warrants, and of which the denominator shall be the number of shares of

         Common Stock outstanding on the date of issuance of such rights or

         warrants, immediately prior to such issuance, plus the number of shares

         of Common Stock which the aggregate offering price of the total number

         of shares of Common Stock so offered for subscription or purchase

         pursuant to such rights or warrants would purchase at such Fair Market

         Value (determined by multiplying such total number of shares by the

         exercise price of such rights or warrants and dividing the product so

         obtained by such Fair Market Value). Such adjustment shall become

         effective at the opening of business on the Business Day next following

         the record date for the determination of stockholders entitled to

         receive such rights or warrants. To the extent that shares of Common

         Stock are not delivered after the expiration of such rights or

         warrants, the Exchange Rate shall be readjusted to the Exchange Rate

         which would then be in effect had the adjustments made upon the

         issuance of such rights or warrants been

 

                                      -13-

 

 

 

 

<PAGE>   14

 

 

 

         made upon the basis of the issuance of rights or warrants in respect of

         only the number of shares of Common Stock actually delivered.

 

         (4)      If the Corporation shall pay a dividend or make a distribution

         to all holders of its Common Stock consisting of evidences of its

         indebtedness or other assets (including shares of capital stock of the

         Corporation other than Common Stock but excluding any cash dividends or

         any dividends or other distributions referred to in clauses (i) and

         (ii) above), or shall issue to all holders of its Common Stock rights

         or warrants to subscribe for or purchase any of its securities (other

         than those referred to in clause (iii) above and other than Rights),

         then in each such case the Exchange Rate shall be adjusted by

         multiplying the Exchange Rate in effect on the record date for such

         dividend or distribution or for the determination of stockholders

         entitled to receive such rights or warrants, as the case may be, by a

         fraction of which the numerator shall be the Fair Market Value per

         share of the Common Stock on such record date, and of which the

         denominator shall be such Fair Market Value per share of Common Stock

         less the fair market value (as determined by the Board of Directors,

         whose determination shall be conclusive) as of such record date of the

         portion of the assets or evidences of indebtedness so distributed, or

         of such subscription rights or warrants, applicable to one share of

         Common Stock. Such adjustment shall become effective on the opening of

         business on the Business Day next following the record date for such

         dividend or distribution or for the determination of stockholders

         entitled to receive such rights or warrants, as the case may be.

 

         (5)      Any share of Common Stock issuable in payment of a dividend or

         other distribution shall be deemed to have been issued immediately

         prior to the close of business on the record date for such dividend or

         other distribution for purposes of calculating the number of

         outstanding shares of Common Stock under subparagraph (ii) above.

 

         (6)      Anything in this paragraph (d) notwithstanding, the

         Corporation shall be entitled to make such upward adjustments in the

         Exchange Rate, in addition to those required by this paragraph (d), as

         the Corporation in its sole discretion shall determine to be advisable,

         in order that any stock dividends, subdivision of shares, distribution

         of rights to purchase stock or securities, or distribution of

         securities convertible into or exchangeable for stock (or any

         transaction which could be treated as any of the foregoing transactions

         pursuant to Section 305 of the Internal Revenue Code of 1986, as

         amended) hereafter made by the Corporation to its stockholders shall

         not be taxable.

 

         (7)      In any case in which this paragraph (d) shall require that an

         adjustment as a result of any event become effective at the opening of

         business on the Business Day next following a record date and the date

         fixed for conversion pursuant to paragraph (a) occurs after such record

         date, but before the occurrence of such event, the Corporation may in

         its sole discretion elect to defer the following until after the

         occurrence of such event: (A) issuing to the holder of any shares of

         Series E Preferred Stock surrendered

 

                                      -14-

 

 

 

 

<PAGE>   15

 

 

 

         for conversion the additional shares of Common Stock issuable upon such

         conversion over the shares of Common Stock issuable before giving

         effect to such adjustment; and (B) paying to such holder any amount in

         cash in lieu of a fractional share of Common Stock pursuant to Section

         5(d).

 

         (8)      For purposes hereof, an "adjustment in the Exchange Rate"

         means, and shall be implemented by, an adjustment of the nature and

         amount specified, effected in the manner specified, in each of the

         Upper Exchange Rate, the Middle Exchange Rate and the Lower Exchange

         Rate. If an adjustment is made to the Exchange Rate pursuant to this

         paragraph (d), a proportionate adjustment in the same direction shall

         also be made on the Automatic Conversion Date to the Current Market

         Price solely to determine which of clauses (a), (b) or (c) of the

         definition of Exchange Rate will apply on the Automatic Conversion

         Date. Such adjustment shall be made by multiplying the Current Market

         Price by a fraction of which the numerator shall be the Exchange Rate

         immediately after such adjustment pursuant to this paragraph (d) and

         the denominator shall be the Exchange Rate immediately before such

         adjustment. All adjustments to the Exchange Rate shall be calculated to

         the nearest 1/1,000,000th of a share of Common Stock. No adjustment in

         the Exchange Rate shall be required unless such adjustment would

         require an increase or decrease of at least one percent in the Exchange

         Rate; provided, however, that any adjustments which by reason of this

         subparagraph are not required to be made shall be carried forward and

         taken into account in any subsequent adjustment. All adjustments to the

         Exchange Rate shall be made successively.

 

         (9)      Before taking any action that would cause an adjustment

         increasing the Exchange Rate such that the conversion price (for

         purposes of this paragraph (d), an amount equal to the liquidation

         value per share of Series E Preferred Stock divided by the Upper

         Exchange Rate as in effect from time to time) would be below the then

         par value of the Common Stock, the Corporation will take any corporate

         action which may, in the opinion of its counsel, be necessary in order

         that the Corporation may validly and legally issue fully paid and

         nonassessable shares of Common Stock at the Upper Exchange Rate as so

         adjusted.

 

         e. Adjustment for Certain Consolidations or Mergers. In case of any

consolidation or merger to which the Corporation is a party (other than a merger

or consolidation in which the Corporation is the continuing corporation and in

which the Common Stock outstanding immediately prior to the merger or

consolidation remains unchanged), or in case of any sale or transfer to another

corporation of the property of the Corporation as an entirety or substantially

as an entirety, or in case of any statutory exchange of securities with another

corporation (other than in connection with a merger or acquisition), proper

provision shall be made so that each share of the Series E Preferred Stock

shall, after consummation of such transaction, be subject to (i) conversion at

the option of the holder into the kind and amount of securities, cash or other

property receivable upon consummation of such transaction by a holder of the

number of shares of Common Stock into which such share of Series E Preferred

Stock would have been converted if the conversion had occurred immediately prior

to consummation of such

 

                                      -15-

 

 

 

 

<PAGE>   16

 

 

 

transaction (based on the Exchange Rate in effect immediately prior to such

consummation) and (ii) conversion on the Automatic Conversion Date into the kind

and amount of securities, cash or other property receivable upon consummation of

such transaction by a holder of the number of shares of Common Stock into which

such share of Series E Preferred Stock would have been converted if the

conversion on the Automatic Conversion Date had occurred immediately prior to

the date of consummation of such transaction (based on the Exchange Rate in

effect immediately prior to such consummation); assuming in each case that such

holder of Common Stock failed to exercise rights of election, if any, as to the

kind or amount of securities, cash or other property receivable upon

consummation of such transaction (provided that if the kind or amount of

securities, cash or other property receivable upon consummation of such

transaction is not the same for each nonelecting share, then the kind and amount

of securities, cash or other property receivable upon consummation of such

transaction for each nonelecting share shall be deemed to be the kind and amount

so receivable per share by a plurality of the nonelecting shares). The kind and

amount of securities into which the shares of the Series E Preferred Stock shall

be convertible after consummation of such transaction shall be subject to

adjustment as described in paragraph (d) following the date of consummation of

such transaction. The Corporation may not become a party to any such transaction

unless the terms thereof are consistent with the foregoing.

 

         f. Notice of Adjustments. Whenever the Exchange Rate is adjusted as

provided in paragraph (d), the Corporation shall:

 

                  (i) Forthwith compute the adjusted Exchange Rate and prepare a

         certificate signed by the Chief Financial Officer, any Vice President,

         the Treasurer or the Controller of the Corporation setting forth the

         adjusted Exchange Rate, the method of calculation thereof in reasonable

         detail and the facts requiring such adjustment and upon which such

         adjustment is based, which certificate shall be prima facie evidence of

         the correctness of the adjustment, and file such certificate forthwith

         with the Transfer Agent;

 

                  (ii) Make a prompt public announcement stating that the

         Exchange Rate has been adjusted and setting forth the adjusted Exchange

         Rate; and

 

                  (iii) Promptly mail a notice (stating that the Exchange Rate

         has been adjusted and the facts requiring such adjustment and upon

         which such adjustment is based and setting forth the adjusted Exchange

         Rate) to the holders of record of the outstanding shares of the Series

         E Preferred Stock at or prior to the time the Corporation mails an

         interim statement to its stockholders covering the fiscal quarter

         during which the facts requiring such adjustment occurred but in any

         event within 45 days of the end of such fiscal quarter.

 

         g. Prior Notice of Certain Events. In case:

 

         i.       the Corporation shall (1) declare any dividend (or any other

distribution) on its Common Stock, other than a dividend payable solely in cash

in an amount such that the

 

                                      -16-

 

 

 

 

<PAGE>   17

 

 

 

aggregate cash dividend per share of Common Stock in any fiscal quarter does not

exceed 3.75% of the Current Market Price of the Common Stock on the Trading Day

next preceding the date of declaration of such dividend, or (2) declare or

authorize a redemption or repurchase of in excess of 10% of the then outstanding

shares of Common Stock; or

 

        ii.       the Corporation shall authorize the granting to all holders of

Common Stock of rights or warrants to subscribe for or purchase any shares of

stock of any class or of any other rights or warrants (other than Rights); or

 

        iii.      of any reclassification of Common Stock (other than a

subdivision or combination of the outstanding Common Stock, or a change in par

value, or from par value to no par value, or from no par value to par value), or

of any consolidation or merger to which the Corporation is a party and for which

approval of any stockholders of the Corporation shall be required, or of the

sale or transfer of all or substantially all of the assets of the Corporation or

of any compulsory share exchange where the Common Stock is converted into other

securities, cash or other property; or

 

        iv.       of the voluntary or involuntary liquidation, dissolution or

winding up of the Corporation;

 

then the Corporation shall cause to be filed with the Transfer Agent and each

office or agency maintained for conversion of shares of Series E Preferred

Stock, and shall cause to be mailed to the holders of record of the Series E

Preferred Stock, at their last addresses as they shall appear upon the stock

transfer books of the Corporation, at least 15 days prior to the applicable

record date hereinafter specified, a notice stating (x) the date on which a

record (if any) is to be taken for the purpose of such dividend, distribution,

redemption, repurchase or granting of rights or warrants or, if a record is not

to be taken, the date as of which the holders of Common Stock of record to be

entitled to such dividend, distribution, redemption, rights or warrants are to

be determined or (y) the date on which such reclassification, consolidation,

merger, sale, transfer, share exchange, liquidation, dissolution or winding up

is expected to become effective, and the date as of which it is expected that

holders of Common Stock of record shall be entitled to exchange their shares of

Common Stock for securities or other property (including cash) deliverable upon

such reclassification, consolidation, merger, sale, transfer, share exchange,

liquidation, dissolution or winding up. No failure to mail such notice or any

defect therein or in the mailing thereof shall affect the validity of the

corporate action required to be specified in such notice.

 

        h. Dividend or Interest Reinvestment Plans; Other. Notwithstanding the

foregoing provisions, the issuance of any shares of Common Stock pursuant to any

plan providing for the reinvestment of dividends or interest payable on

securities of the Corporation and the investment of additional optional amounts

in shares of Common Stock under any such plan, and the issuance of any shares of

Common Stock or options or rights to purchase such shares pursuant to any

employee benefit plan or program of the Corporation, or pursuant to any option,

warrant, right or exercisable, exchangeable or convertible security outstanding

as of

 

                                      -17-

 

 

 

 

<PAGE>   18

 

 

 

the date the Series E Preferred Stock was first designated, shall not be deemed

to constitute an issuance of Common Stock or exercisable, exchangeable or

convertible securities by the Corporation to which any of the adjustment

provisions described above applies. There shall be no adjustment of the Exchange

Rate in case of the issuance of any stock (or securities convertible into or

exchangeable for stock) of the corporation except as described in this Section

4. Except as expressly set forth in this Section 4, if any action would require

adjustment of the Exchange Rate pursuant to more than one of the provisions

described above, only one adjustment shall be made and such adjustment shall be

the amount of adjustment which has the highest absolute value.

 

         i. For purposes of this Section 4, the number of shares of Common Stock

at any time outstanding shall not include any shares of Common Stock then owned

or held, directly or indirectly through a subsidiary, by or for the account of

the Corporation.

 

5. RESERVATION OF SHARES; LISTING OF SHARES, ETC.

 

         a. Reservation of Shares. The Corporation shall at all times reserve

and keep available, out of its authorized and unissued stock, solely for the

purpose of effecting the conversion of the Series E Preferred Stock, the full

number of shares of its Common Stock deliverable upon conversion of all shares

of Series E Preferred Stock not theretofore converted.

 

         b. Listing of Shares. If any shares of Common Stock required to be

reserved for purposes of conversion of the Series E Preferred Stock hereunder

require registration with or approval of any governmental authority under any

Federal or State law before such shares may be issued upon conversion, the

Corporation will in good faith and as expeditiously as possible endeavor to

cause such shares to be duly registered or approved, as the case may be. If the

Common Stock is listed on the New York Stock Exchange or any other national

securities exchange, the Corporation will, as expeditiously as possible, if

permitted by the rules of such exchange, cause to be listed and keep listed on

such exchange, upon official notice of issuance, all shares of Common Stock

issuable upon conversion of the Series E Preferred Stock.

 

         c. Shares Issued on Conversion to be Fully Paid, Etc. The shares of

Common Stock issuable upon conversion of the shares of Series E Preferred Stock,

when the same shall be issued in accordance with the terms hereof, are hereby

declared to be and shall be fully paid and nonassessable shares of Common Stock

in the hands of the holders thereof.

 

         d. No Fractional Shares. No fractional shares or scrip representing

fractional shares of Common Stock shall be issued upon conversion of Series E

Preferred Stock. Instead of any fractional share of Common Stock that would

otherwise be issuable upon conversion of any shares of Series E Preferred Stock,

the Corporation shall pay a cash adjustment in respect of such fractional

interest in an amount equal to the same fraction of the Closing Price of a share

of Common Stock (or, if there is no such Closing Price, the fair market value of

a share of

 

                                      -18-

 

 

 

 

<PAGE>   19

 

 

 

Common Stock, as determined or prescribed by the Board of Directors) at the

close of business on the Trading Day immediately preceding the date of

conversion.

 

         e. Other Action. If the Corporation shall take any action affecting the

Common Stock, other than action described in Section 4, that in the opinion of

the Board of Directors would materially adversely affect the conversion rights

of the holders of the shares of Series E Preferred Stock, the Exchange Rate for

the Series E Preferred Stock may be adjusted, to the extent permitted by law, in

such manner, if any, and at such time, as the Board of Directors may determine

to be equitable in the circumstances.

 

6. VOTING RIGHTS. Other than as required by applicable law, the Series E

Preferred Stock shall not have any voting powers either general or special

except that:

 

         a. Unless a greater vote or consent shall then be required by law, the

affirmative vote or consent of two-thirds of the votes to which the holders of

the outstanding shares of the Series E Preferred Stock, and each other series of

Preferred Stock of the Corporation similarly affected, if any, voting together

as a single class, are entitled shall be necessary for authorizing, effecting or

validating the amendment, alteration or repeal of any of the provisions of the

Certificate of Incorporation (including any Certificate of Designations,

Preferences and Rights or any similar document relating to any series of

Preferred Stock) of the Corporation, including any amendment or supplement

thereto, if such would materially and adversely affect the preferences, rights,

powers or privileges, qualification, limitations and restrictions of the Series

E Preferred Stock and any such other series of Preferred Stock; provided,

however, that the creation, issuance or increase in the amount of authorized

shares of any series of Preferred Stock ranking on a parity with or junior to

the Series E Preferred Stock as to the payment of dividends or upon liquidation,

dissolution or winding up will not be deemed to materially and adversely affect

such rights, powers or privileges, qualification, limitations and restrictions.

 

         b. Unless the vote or consent of the holders of a greater number of

shares shall then be required by law, the affirmative vote or consent of

two-thirds of the votes to which the holders of the outstanding shares of the

Series E Preferred Stock, and all other series of Preferred Stock of the

Corporation ranking on parity with shares of the Series E Preferred Stock

(either as to dividends or upon liquidation, dissolution or winding up) as to

which like voting rights have been conferred, voting together as a single class,

are entitled shall be necessary to create, authorize or issue, or reclassify any

authorized stock of the Corporation into, or create, authorize or issue any

obligation or security convertible into or evidencing a right to purchase, any

shares of any class or series of stock of the Corporation ranking prior to the

Series E Preferred Stock or ranking prior to any other class or series of

Preferred Stock of the Corporation which ranks on a parity with the Series E

Preferred Stock as to dividends or upon liquidation, dissolution or winding up.

 

         c. Whenever, at any time or times, dividends payable on the shares of

Series E Preferred Stock shall be in arrears in an amount equal to at least six

full quarterly dividends on shares of the Series E Preferred Stock at the time

outstanding, the holders of the outstanding

 

                                      -19-

 

 

 

 

<PAGE>   20

 

 

 

shares of Series E Preferred Stock shall have the exclusive right, voting

together as a class with holders of shares of any one or more other series of

Preferred Stock ranking on a parity with the Series E Preferred Stock (either as

to dividends or upon liquidation, dissolution or winding up) upon which like

voting rights have been conferred and are then exercisable, to elect two (2)

directors of the Corporation for one-year terms at the Corporation's next annual

meeting of stockholders and at each subsequent annual meeting of stockholders.

If the right to elect directors shall have accrued to the holders of the Series

E Preferred Stock more than 90 days prior to the date established for the next

annual meeting of stockholders, the President of the Corporation shall, within

20 days after delivery to the Corporation at its principal office of a written

request for a special meeting signed by the holders of at least 10% of all

outstanding shares of the Series E Preferred Stock, call a special meeting of

the holders of Series E Preferred Stock to be held within 60 days after the

delivery of such request for the purpose of electing such additional directors.

Upon the vesting of such right of the holders of Series E Preferred Stock, the

maximum authorized number of members of the Board of Directors shall

automatically be increased by two and the two vacancies so created shall be

filled by vote of the holders of the outstanding shares of Series E Preferred

Stock (either alone or together with the holders of shares of any one or more

other such series of Preferred Stock entitled to vote in such election) as set

forth above. The right of the holders of Series E Preferred Stock to elect

members of the Board of Directors of the Corporation as aforesaid shall continue

until such time as all dividends in arrears on the Series E Preferred Stock

shall have been paid in full or declared and set apart for payment, at which

time such right shall terminate, except as herein or by law expressly provided,

subject to revesting in the event of each and every subsequent default of the

character above described.

 

         d. Upon termination of such special voting rights attributable to all

holders of the Series E Preferred Stock and any other such series of Preferred

Stock ranking on a parity with the Series E Preferred Stock as to dividends or

upon liquidation, dissolution or winding up and upon which like voting rights

have been conferred and are exercisable, the term of office of each director

elected by the holders of shares of Series E Preferred Stock and such parity

Preferred Stock (a "Preferred Stock Director") pursuant to such special voting

rights shall immediately terminate and the number of directors constituting the

entire Board of Directors shall be reduced by the number of Preferred Stock

Directors. Any Preferred Stock Director may be removed by, and shall not be

removed otherwise than by, a majority of the votes to which the holders of the

outstanding shares of Series E Preferred Stock and all other such series of

Preferred Stock ranking on a parity with the Series E Preferred Stock with

respect to dividends who were entitled to participate in such Preferred Stock

Directors election, voting as a single class, are entitled. If the office of any

Preferred Stock Director becomes vacant by reason of death, resignation,

retirement, disqualification, removal from office, or otherwise, the remaining

Preferred Stock Director may choose a successor who shall hold office for the

unexpired term in respect of which such vacancy occurred.

 

         e. In connection with any right to vote, each holder of Series E

Preferred Stock shall be entitled to one vote for each share held (the holders

of shares of any other series of Preferred Stock

 

                                      -20-

 

 

 

 

<PAGE>   21

 

 

 

being entitled to such number of votes, if any, for each share of stock held as

may be granted to them).

 

7. RANKING. The Common Stock shall rank junior to the Series E Preferred Stock

as to dividends and upon liquidation, dissolution or winding up, as described in

Sections 2 and 3. Any other class or series of stock of the Corporation shall be

deemed to rank:

 

         a. prior to the Series E Preferred Stock, as to dividends or upon

liquidation, dissolution or winding up as described in Section 3, respectively,

if the holders of such class shall be entitled to the receipt of dividends or of

amounts distributable upon such a liquidation, dissolution or winding up, as the

case may be, in preference or priority to the holders of the Series E Preferred

Stock;

 

         b. on a parity with the Series E Preferred Stock, as to dividends or

upon liquidation, dissolution or winding up as described in section 3,

respectively, whether or not the dividend rates, dividend payment dates or

redemption or liquidation prices per share thereof be different from those of

the Series E Preferred Stock, if the holders of such class of stock and the

Series E Preferred Stock shall be entitled to the receipt of dividends or of

amounts distributable upon such a liquidation, dissolution or winding up, as the

case may be, in proportion to their respective amounts of accrued and unpaid

dividends per share or liquidation prices, without preference or priority one

over the other; and

 

         c. junior to the Series E Preferred Stock, as to dividends or upon

liquidation, dissolution or winding up as described in section 3, respectively,

if the holders of Series E Preferred Stock shall be entitled to receipt of

dividends or of amounts distributable upon such a liquidation, dissolution or

winding up, as the case may be, in preference or priority to the holders of

shares of such stock.

 

8. DEFINITIONS. For purposes of this Certificate of Designations, Preferences

and Rights of Series E Preferred Stock, the following terms shall have the

meanings indicated:

 

         a. "Automatic Conversion" is defined in Section 4(a).

 

         b. "Automatic Conversion Date" shall mean the third anniversary of the

Initial Issuance Date.

 

         c. "Base Number" shall mean the number derived from dividing $100 by

the Initial Common Stock Price.

 

         d. "Business Day" shall mean any day other than a Saturday, Sunday, or

a day on which banking institutions in the State of New York or The Commonwealth

of Massachusetts are authorized or obligated by law or executive order to close

or a day which is or is declared a national or New York or Massachusetts state

holiday.

 

                                      -21-

 

 

 

 

<PAGE>   22

 

 

 

         e. "Closing Price" with respect to any securities on any day shall mean

the closing sale price regular way on such day or, in case no such sale takes

place on such day, the average of the reported closing bid and asked prices,

regular way, in each case on the New York Stock Exchange, or, if such security

is not listed or admitted to trading on such Exchange, on the principal national

securities exchange or quotation system on which such security is quoted or

listed or admitted to trading, or, if not quoted or listed or admitted to

trading on any national securities exchange or quotation system, the average of

the closing bid and asked prices of such security on the over-the-counter market

on the day in question as reported by the National Association of Securities

Dealers, Inc. Automated Quotation System, or a similarly generally accepted

reporting service, or if not so available, in such manner as furnished by any

New York Stock Exchange member firm selected from time to time by the Board of

Directors for that purpose.

 

         f. "Current Market Price" shall mean the average of the daily Closing

Prices per share of Common Stock for the ten consecutive Trading Days

immediately prior to the date in question, provided, however, that, if any event

that results in an adjustment of the Exchange Rate occurs during the period

beginning on the first day of such ten-day period and ending on the applicable

conversion date, the Current Market Price as determined pursuant to the

foregoing shall be appropriately adjusted to reflect the occurrence of such

event.

 

         g. The "Exchange Rate" shall be equal to (a) if the Current Market

Price on the date of determination is equal to or greater than 120% of the

Initial Common Stock Price (the "Threshold Common Stock Price"), the number of

shares of Common Stock equal to 0.83333333 of the Base Number (the "Upper

Exchange Rate"), (b) if the Current Market Price on the date of determination is

less than the Threshold Common Stock Price but greater than the Initial Common

Stock Price, the number of shares of Common Stock having a value (determined at

the Current Market Price) equal to the Initial Preferred Stock Price (the

"Middle Exchange Rate"), and (c) if the Current Market Price on the date of

determination is equal to or less than the Initial Common Stock Price, a number

of shares of Common Stock (the "Lower Exchange Rate") equal to the Base Number;

provided that for all purposes relating to optional conversion by a holder

pursuant to Section 4(b) the Exchange Rate shall be equal to the Upper Exchange

Rate. The Exchange Rate is subject to adjustment as set forth in Section 4(d).

 

         h. "Fair Market Value" on any day shall mean the average of the daily

Closing Prices of a share of Common Stock of the Corporation on the five (5)

consecutive Trading Days selected by the Corporation commencing not more than 20

Trading Days before, and ending not later than, the earlier of the day in

question and the day before the "ex" date with respect to the issuance or

distribution requiring such computation. The term "'ex' date", when used with

respect to any issuance or distribution, means the first day on which the Common

Stock trades regular way, without the right to receive such issuance or

distribution, on the exchange or in the market, as the case may be, used to

determine that day's Closing Price.

 

                                      -22-

 

 

 

 

<PAGE>   23

 

 

 

         i. "Full Cumulative Dividends" shall mean, with respect to the Series E

Preferred Stock, or any other capital stock of the Corporation, as of any date

the aggregate amount of all then accumulated, accrued and unpaid dividends

payable on such shares of Series E Preferred Stock, or other capital stock, as

the case may be, in cash, whether or not earned or declared and whether or not

there shall be funds legally available for the payment thereof.

 

         j. "Initial Common Stock Price" shall mean $15.4375 per share of Common

Stock.

 

         k. "Initial Issuance Date" shall mean the date on which shares of

Series E Preferred Stock are initially issued by the Company.

 

         l. "Initial Preferred Stock Price" shall mean $100 per share.

 

         m. "Lower Exchange Rate" is defined in the definition of "Exchange

Rate".

 

         n. "Middle Exchange Rate" is defined in the definition of "Exchange

Rate".

 

         o. "Optional Conversion" is defined in Section 4(b).

 

         p. "Optional Conversion Date" is defined in Section 4(b).

 

         q. "Record Date" shall mean, with respect to any dividend, distribution

or other transaction or event in which the holders of Common Stock have the

right to receive any cash, securities or other property or in which the Common

Stock (or other applicable security) is exchanged or converted into any

combination of cash, securities or other property, the date fixed for

determination of stockholders entitled to receive such cash, securities of other

property (whether such dated is fixed by the Board of Directors or by statute,

contract or otherwise), and with respect to any subdivision or combination of

the Common Stock, the effective date of such subdivision or combination.

 

         r. "Rights" shall mean the rights of the Corporation which are issuable

under the Rights Agreement, or rights to purchase any capital stock of the

Corporation under any successor shareholder rights plan or plan adopted in

replacement of the Rights Agreement.

 

         s. "Rights Agreement" shall mean any agreement similar to the

Corporation's previous Rights Agreement dated as of April 26, 1988 between the

Corporation and State Street Bank and Trust Company, as Rights Agent, as the

same may be amended from time to time.

 

         t. [omitted].

 

         u. [omitted].

 

         v. [omitted].

 

                                      -23-

 

 

 

 

<PAGE>   24

 

 

 

         w. "Threshold Common Stock Price" is defined in the definition of

"Exchange Rate".

 

         x. "Trading Day" shall mean (x) if the applicable security is listed or

admitted for trading on the New York Stock Exchange or another national

securities exchange, a day on which the New York Stock Exchange or such other

national securities exchange is open for business or (y) if the applicable

security is quoted on the National Market System of the National Association of

Securities Dealers Automated Quotation System, a day on which trades may be made

on such National Market System or (z) if the applicable security is not so

listed, admitted for trading or quoted, any day other than a Saturday or Sunday

or a day on which banking institutions in the State of New York are authorized

or obligated by law or executive order to close.

 

         y. "Transfer Agent" shall mean State Street Bank and Trust Company, or

any other national or state bank or trust company having combined capital and

surplus of at least $100,000,000 and designated by the Corporation as the

transfer agent and/or registrar of the Series E Preferred Stock, or if no such

designation is made, the Corporation.

 

         z. "Upper Exchange Rate" is defined in the definition of "Exchange

Rate".

 

         FIFTH: The minimum amount of capital with which this corporation will

commence business is one thousand dollars ($1,000.).

 

         The board of directors, without the assent of or other action by the

stockholders, may from time to time authorize the issue and sale of shares of

stock of this corporation now or hereafter authorized, for such consideration

and upon such terms as the board may determine.

 

         SIXTH: This corporation is to have perpetual existence.

 

         SEVENTH: The private property of the stockholders shall not be subject

to the payment of corporate debts.

 

         EIGHTH: The following provisions are inserted for the regulation and

conduct of the affairs of this corporation, and it is expressly provided that

they are intended to be in furtherance and not in limitation or exclusion of the

powers elsewhere conferred herein or in the by-laws or conferred by law:

 

         (a) Except as may be otherwise expressly required by law or by other

provisions of this certificate of incorporation or by the by-laws, the board of

directors shall have and may exercise, transact, manage, promote and carry on

all of the powers, authorities, businesses, objects and purposes of this

corporation.

 

         (b) Certain Provisions Relating to Nomination, Election and Removal of

Directors.

 

                                      -24-

 

 

 

 

<PAGE>   25

 

 

 

                  1.       ELECTION OF DIRECTORS. Elections of directors need

                           not be by written ballot unless the by-laws shall so

                           provide. No director need be a stockholder.

 

                  2.       NUMBER, ELECTION AND TERMS OF DIRECTORS. Except as

                           otherwise fixed pursuant to the provisions of Article

                           FOURTH hereof relating to the rights of the holders

                           of any class or series of stock having a preference

                           over the Common Stock as to dividends or upon

                           liquidation to elect additional directors under

                           specified circumstances, the number of directors of

                           the Corporation shall be fixed from time to time by

                           or pursuant to the by-laws. The directors, other than

                           those who may be elected by the holders of any class

                           or series of stock having preference over the Common

                           Stock as to dividends or upon liquidation, shall be

                           classified, with respect to the time for which they

                           severally hold office, into three classes, designated

                           Class I, Class II and Class III, as nearly equal in

                           number as possible, with the term of office of one

                           Class expiring each year. At the annual meeting of

                           stockholders in 1985, directors of Class I shall be

                           elected to hold office for a term expiring at the

                           next succeeding annual meeting, directors of Class II

                           shall be elected to hold office for a term expiring

                           at the second succeeding annual meeting, and

                           directors of Class III shall be elected to hold

                           office for a term expiring at the third succeeding

                           annual meeting, with the members of each Class to

                           hold office until their successors are elected and

                           qualified. At each subsequent annual meeting of the

                           stockholders of the Corporation, the successors to

                           the Class of directors whose term expires at such

                           meeting shall be elected to hold office for a term

                           expiring at the annual meeting of stockholders held

                           in the third year following the year of their

                           election.

 

                  3.       STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES.

                           Advance notice of nominations for the election of

                           directors, other than by the Board of Directors or a

                           Committee thereof, shall be given in the manner

                           provided in the by-laws.

 

                  4.       NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as

                           otherwise fixed pursuant to the provisions of Article

                           FOURTH hereof relating to the rights of the holders

                           of any class or series of stock having a preference

                           over the Common Stock as to dividends or upon

                           liquidation to elect directors under specified

                           circumstances, newly created directorships resulting

                           from any increase in the number of directors and any

                           vacancies on the Board of Directors resulting from

                           death, resignation, disqualification, removal or

                           other cause shall be filled solely by the affirmative

                           vote of a majority of the remaining directors then in

                           office, even though less than a quorum of the Board

                           of Directors, or by a sole

 

                                      -25-

 

 

 

 

<PAGE>   26

 

 

 

                           remaining director. Any director elected in

                           accordance with the preceding sentence shall hold

                           office for the remainder of the full term of the

                           Class of directors in which the new directorship was

                           created or the vacancy occurred and until such

                           director's successor shall have been elected and

                           qualified. No decrease in the number of directors

                           constituting the Board of Directors shall shorten the

                           term of any incumbent director.

 

                  5.       REMOVAL OF DIRECTORS. Except as otherwise fixed

                           pursuant to the provisions of Article FOURTH hereof

                           relating to the rights of the holders of any class or

                           series of stock having a preference over the Common

                           Stock as to dividends or upon liquidation to elect

                           directors under specified circumstances, any director

                           may be removed from office without cause only by the

                           affirmative vote of the holders of 66-2/3% of the

                           combined voting power of the then outstanding shares

                           of stock entitled to vote generally in the election

                           of directors voting together as a single class.

 

         (c) By-laws. The Board of Directors and the stockholders shall each

have the power to adopt, alter, amend and repeal the by-laws; and any by-laws

adopted by the directors or the stockholders under the powers conferred hereby

may be altered, amended or repealed by the directors or by the stockholders;

PROVIDED, HOWEVER, that the by-laws shall not be altered, amended or repealed by

action of the stockholders, and no by-law shall be adopted by action of the

stockholders, without the affirmative vote of the holders of at least 66-2/3% of

the voting power of all the shares of the Corporation entitled to vote generally

in the election of directors, voting together as a single class.

 

         (d) The board of directors may at any time set apart out of any of the

funds of this corporation available for dividends a reserve or reserves for any

proper purpose and may at any time reduce or abolish any such reserve. Any other

proper reserves may also be carried.

 

         (e) This corporation may purchase, hold, sell and transfer shares of

its own capital stock, but shall not use its funds or property for the purchase

of its own shares of capital stock when such use would cause any impairment of

the capital of this corporation, subject always to the right of this corporation

to reduce its capital or to redeem any preferred or special shares out of

capital as permitted by law. Shares of its own capital stock belonging to this

corporation shall not be voted upon directly or indirectly. The purchase,

acquisition or holding by this corporation of shares of its own capital stock

shall not be deemed to constitute the retirement of such shares or a reduction

of capital except as such shares are formally retired or the capital is formally

reduced in accordance with the provisions of law therefor.

 

         (f) Nothing in this certificate of incorporation shall be deemed to

prohibit the reissue of any shares of capital stock of this corporation retired

or reduced upon or in connection with any reduction of capital, but upon the

filing and recording of the certificate of reduction such

 

                                      -26-

 

 

 

 

<PAGE>   27

 

 

 

shares shall have the status of authorized and unissued shares of the class of

stock to which such shares belong, if and to the extent permitted by law. So far

as permitted by law the stockholders or board of directors authorizing or

effectuating any reduction of capital may determine the manner in which such

reduction shall be effected and the extent, if any, to which any assets shall be

distributed to stockholders, and except as and to the extent that such a

distribution is so authorized or provided for, no stockholder shall be entitled

to demand any distribution of assets in connection with or as the result of any

reduction of capital.

 

         (g) The board of directors may from time to time determine whether and

to what extent and at what times and places and under what conditions and

regulations the accounts and books and papers of this corporation, or any of

them, shall be open to the inspection of the stockholders, and no stockholder

shall have any right to inspect any account, book or document of this

corporation, except as and to the extent expressly provided by law with

reference to the right of stockholders to examine the original or duplicate

stock ledger, or as otherwise expressly provided by law, or except as expressly

authorized by resolution of the board of directors.

 

         (h) The board of directors shall have the power to fix from time to

time the compensation of its members. No person shall be disqualified from

holding any office by reason of any interest. In the absence of fraud or bad

faith, any director, officer or stockholder of this corporation individually, or

any individual having any interest in any concern which is a stockholder of this

corporation, or any concern in which any such directors, officers, stockholders

or individuals have any interest, may be a party to, or may be pecuniarily or

otherwise interested in, any contract, transaction or other act of this

corporation, and

 

(i)               such contract, transaction or act shall not be in any way

                  invalidated or otherwise affected by that fact;

 

(ii)              no such director, officer, or stockholder shall be liable to

                  account to this corporation for any profit or benefit realized

                  through any such contract, transaction or act; and

 

(iii)             any such director of this corporation may be counted in

                  determining the existence of a quorum at any meeting of the

                  board of directors or of any committee thereof which shall

                  authorize any such contract, transaction or act, and may vote

                  to authorize the same,

 

provided, however, that any contract, transaction or act in which any director

or officer of this corporation is so interested individually or as a director,

officer, trustee or member of any concern which is not a subsidiary or affiliate

of this corporation, or in which any directors or officers, respectively, are so

interested as holders, collectively, of a majority of shares of capital stock or

other beneficial interest at the time outstanding in any concern which is not a

subsidiary or affiliate of this corporation, shall be duly authorized or

ratified by a majority of

 

                                      -27-

 

 

 

 

<PAGE>   28

 

 

 

the board of directors who are not so interested and to whom the nature of such

interest has been disclosed. With respect to the matters herein contained,

 

(a)      the word "interest" shall include personal interest and interest as a

         director, officer, stockholder, shareholder, trustee, member or

         beneficiary of any concern;

 

(b)      the word "concern" shall mean any corporation, association, trust,

         partnership, firm, person or other entity other than this corporation;

         and

 

(c)      the phrase "subsidiary or affiliate" shall mean a concern in which a

         majority of the directors, trustees, partners or controlling persons

         are elected or appointed by the directors of this corporation, or are

         constituted of the directors or officers of this corporation.

 

To the extent permitted by law, the authorizing or ratifying vote of a majority

in interest of each class of the capital stock of this corporation outstanding

and entitled to vote for directors at an annual meeting or a special meeting

duly called for the purpose (whether such vote is passed before or after

judgment rendered in a suit with respect to such contract, transaction or act)

shall validate any contract, transaction or act of this corporation, or of the

board of directors or any committee thereof, with regard to all stockholders of

this corporation, whether or not of record at the time of such vote, and with

regard to all creditors and other claimants under this corporation, provided,

however, that with respect to the authorization or ratification of contracts,

transactions or acts in which any of the directors, officers or stockholders of

this corporation have an interest, the nature of such contracts, transactions or

acts and the interest of any director, officer or stockholder therein shall be

summarized in the notice of any such annual or special meeting, or in a

statement or letter accompanying such notice, and shall be fully disclosed at

any such meeting, and provided also that stockholders so interested may vote at

any such meeting, and provided further that any failure of the stockholders to

authorize or ratify such contract, transaction or act shall not be deemed in any

way to invalidate the same or to deprive this corporation, its directors,

officers or employees of its or their right to proceed with such contract,

transaction or act.

 

No contract, transaction or act shall be avoided by reason of any provision of

this clause (h) which would be valid but for those provisions.

 

         (i) The Corporation shall indemnify each person who is or was a

director or officer of this Corporation against expenses (including attorney's

fees), judgments, fines and amounts paid in settlement to the maximum extent

permitted from time to time under the General Corporation Law of the State of

Delaware. 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.

 

         (j) [omitted].

 

                                      -28-

 

 

 

 

<PAGE>   29

 

 

 

         (k) Stockholder Action. Any action required or permitted to be taken by

the stockholders of the Corporation, or any class or series thereof, must be

effected at a duly called annual or special meeting of such holders and may not

be effected by any consent in writing by such holders. Except as otherwise

required by law and subject to the rights of the holders of any class or series

of stock having a preference over the Common Stock as to dividends or upon

liquidation, special meetings of stockholders of the Corporation may be called

only by the Chairman of the Board, the President or the Board of Directors

pursuant to a resolution approved by a majority of the entire Board of

Directors.

 

         (l) Certain Amendments, etc. Notwithstanding anything contained in this

Certificate of Incorporation to the contrary, the affirmative vote of the

holders of at least 66-2/3% of the voting power of all shares of the Corporation

entitled to vote generally in the election of directors, voting together as a

single class, shall be required to alter, amend, adopt any provision

inconsistent with, or repeal, paragraphs (b), (c), (k) or this paragraph (1) of

this Article EIGHTH or any provision hereof or thereof.

 

         (m) A director of the Corporation shall not be personally liable to the

Corporation or its stockholders for monetary damages for breach of fiduciary

duty as a director, except for liability (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, or (iv) for any transaction from which the director derived an improper

personal benefit. If the Delaware General Corporation Law is amended after

approval by the stockholders of this provision to authorize corporate action

further eliminating or limiting the personal liability of directors, then the

liability of a director of the Corporation shall be eliminated or limited to the

full extent permitted by the Delaware General Corporation Law, as so amended.

 

         Any repeal or modification of the foregoing paragraph by the

stockholders of the Corporation shall not adversely affect any right or

protection of a director of the Corporation existing at the time of such repeal

or modification.

 

         NINTH: Subject to the applicable provisions (if any) of this

certificate of incorporation, this corporation reserves the right to amend,

alter, change, add to or repeal any provision contained in this certificate of

incorporation, in the manner now or hereafter prescribed by law.

 

         IN WITNESS WHEREOF, The TJX Companies, Inc. has caused this certificate

to be signed by DONALD G. CAMPBELL, its EXECUTIVE VICE PRESIDENT, and its

corporate seal affixed hereto, this 4th day of September, 1997. This Restated

Certificate of Incorporation was duly adopted in accordance with the provisions

of section 245 of the General Corporation Law of the State of Delaware, and only

restates and integrates and does not further amend the provisions of the

Corporation's certificate of incorporation as heretofore amended or

supplemented. There is no discrepancy between the provisions of the certificate

of

 

                                      -29-

 

 

 

 

<PAGE>   30

 

 

 

incorporation as heretofore amended or supplemented and the provisions of this

restated certificate of incorporation. This certificate is to be filed with the

Secretary of State of the State of Delaware, and recorded with the Recorder of

Deeds of New Castle County, Delaware, pursuant to Sections 103 and 245 of the

General Corporation Law of the State of Delaware.

 

                                    THE TJX COMPANIES, INC.

 

 

                                    By /s/ Donald G. Campbell

                                       -----------------------------------------

                                       Name: Donald G. Campbell

                                       Title: Executive Vice President

 

 

 

                                      -30-

 

 

 

 

<PAGE>   31

 

 

 

                            CERTIFICATE OF AMENDMENT

 

                                       OF

 

                   THIRD RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                             THE TJX COMPANIES, INC.

 

                                    * * * * *

 

Pursuant to Section 242 of the General Corporation Law of

the State of Delaware

 

         I, Donald G. Campbell, Executive Vice President-Finance and Chief

Financial Officer of The TJX Companies, Inc. (the "Corporation"), a corporation

organized and existing under the laws of the State of Delaware, do hereby

certify under the seal of the Corporation as follows:

 

1.       The Third Restated Certificate of Incorporation of the Corporation is

         hereby amended by striking out the first paragraph of Article Fourth as

         it now exists and inserting a new first paragraph of Article Fourth, in

         lieu and instead thereof, to read as follows:

 

         "FOURTH: The total number of shares of capital stock of all classes

         which this Corporation shall have authority to issue shall be six

         hundred five million (605,000,000) shares, consisting of six hundred

         million (600,000,000) shares of Common Stock of the par value of one

         dollar ($1.00) per share, amounting in the aggregate to six hundred

         million dollars ($600,000,000), and five million (5,000,000) shares of

         Preferred Stock of the par value of one dollar ($1.00) per share,

         amounting in the aggregate to five million dollars ($5,000,000)."

 

2.       The Board of Directors of the Corporation at a meeting held on April 8,

         1998 unanimously recommended that the foregoing amendment be adopted by

         the stockholders and the foregoing amendment has been duly adopted by

         the vote of a majority of the shares of outstanding Common Stock of the

         Corporation entitled to vote thereon at the Annual Meeting of

         Stockholders of the Corporation held on June 2, 1998.

 

         IN WITNESS WHEREOF, I hereunto set my hand and the seal of the

Corporation this 2nd day of June, 1998.

 

 

                                    /s/ Donald G. Campbell

                                    --------------------------------------------

                                    Donald G. Campbell

                                    Executive Vice President-Finance and

(Corporate Seal)                    Chief Financial Officer

 

 

                                      -31-

 

 

 

 

<PAGE>   32

 

 

                            CERTIFICATE OF AMENDMENT

 

                                       OF

 

                   THIRD RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                             THE TJX COMPANIES, INC.

 

                                    * * * * *

 

            Pursuant to Section 242 of the General Corporation Law of

                              the State of Delaware

 

 

         I, Donald G. Campbell, Executive Vice President-Finance and Chief

Financial Officer of The TJX Companies, Inc. (the "Corporation"), a corporation

organized and existing under the laws of the State of Delaware, do hereby

certify under the seal of the Corporation as follows:

 

1.       The Third Restated Certificate of Incorporation of the Corporation is

         hereby amended by striking out the first paragraph of Article Fourth as

         it now exists and inserting a new first paragraph of Article Fourth, in

         lieu and instead thereof, to read as follows:

 

         "FOURTH: The total number of shares of capital stock of all classes

         which this Corporation shall have authority to issue shall be one

         billion two hundred and five million (1,205,000,000) shares, consisting

         of one billion two hundred million (1,200,000,000) shares of Common

         Stock of the par value of one dollar ($1.00) per share, amounting in

         the aggregate to one billion two hundred million dollars

         ($1,200,000,000), and five million (5,000,000) shares of Preferred

         Stock of the par value of one dollar ($1.00) per share, amounting in

         the aggregate to five million dollars ($5,000,000)."

 

2.       The Board of Directors of the Corporation at a meeting held on April

         13, 1999 unanimously recommended that the foregoing amendment be

         adopted by the stockholders and the foregoing amendment has been duly

         adopted by the vote of a majority of the shares of outstanding Common

         Stock of the Corporation entitled to vote thereon at the Annual Meeting

         of Stockholders of the Corporation held on June 8, 1999.

 

         IN WITNESS WHEREOF, I hereunto set my hand and the seal of the

Corporation this 8th day of June, 1999.

 

                                    /s/ Donald G. Campbell

                                    --------------------------------------------

                                    Donald G. Campbell

                                    Executive Vice President-Finance and

(Corporate Seal)                    Chief Financial Officer

 

 

 

 

 

CERTIFICATE OF AMENDMENT

OF

FOURTH RESTATED
CERTIFICATE OF INCORPORATION

     The TJX Companies, 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:

     FIRST: That at a meeting of the Board of Directors of the Corporation a resolution was adopted setting forth a proposed amendment to the Fourth Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and directing that it be submitted to the 2005 annual meeting of stockholders of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

 

 

 

RESOLVED:

 

That this Board of Directors does hereby recommend and declare advisable the amendments to Article EIGHTH of the Corporation’s Fourth Restated Certificate of Incorporation as follows:

1. Article EIGHTH, paragraph (b)(2) be amended to read as follows:

Number, Election and Terms of Directors. Except as otherwise fixed pursuant to the provisions of Article FOURTH hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional directors under the specified circumstances, the number of directors of the Corporation shall be fixed from time to time by or pursuant to the by-laws. The term of office of all directors who are in office immediately prior to the closing of the polls for the election of Directors at the 2006 annual meeting of stockholders shall expire at such time. From and after the election of directors at the 2006 annual meeting of stockholders, the directors shall be elected to hold office until the next annual meeting of stockholders and until their respective successors shall have been duly elected and qualified, subject, however, to prior death, resignation, disqualification or removal from office.”

2. Article EIGHTH, paragraph (b)(4) be amended to read as follows:

Newly Created Directorships and Vacancies. Except as otherwise fixed pursuant to the provisions of Article FOURTH hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or

 


 

other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office until the next annual meeting of stockholders and until such director’s successor shall have been elected or qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.”

3. Article FOURTH, paragraph (b)(5) is deleted in its entirety.

4. Article EIGHTH, paragraph (c) be amended to read as follows:

By-laws. The Board of Directors and the stockholders shall each have the power to adopt, alter, amend and repeal the by-laws; and any by-laws adopted by the directors or the stockholders under the powers conferred hereby may be altered, amended or repealed by the directors or the stockholders.”

5. Article EIGHTH, paragraph (l) is deleted in its entirety.

     SECOND: That pursuant to a resolution of its Board of Directors, the 2005 annual meeting of stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute and the Fourth Restated Certificate of Incorporation were voted in favor of the foregoing amendment.

     THIRD: The said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

[The remainder of this page has been left intentionally blank.]

-2-


 

     IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by Jeffrey G. Naylor, its Senior Executive Vice President and Chief Financial Officer, and attested to by Ann McCauley, its Senior Vice President, General Counsel and Secretary, this 8th day of July, 2005.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE TJX COMPANIES, INC.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Jeffrey G. Naylor

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name:

 

Jeffrey G. Naylor

 

 

 

 

 

 

 

 

Title:

 

Senior Executive Vice President
and Chief Financial Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTEST:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Ann McCauley

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name:

 

Ann McCauley

 

 

 

 

 

 

 

 

Title:

 

Senior Vice President, General Counsel and Secretary

 

[As Filed: 09-02-2005]