UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MATTHEW...

Case 1:11-cv-11339-MLW Document 1 Filed 07/27/11 of 31

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MATTHEW PUZEY, on Behalf of Himself and ) Case No.All Others Similarly Situated, )

) CLASS ACTIONPlaintiff, )

) SHAREHOLDER CLASS ACTIONvs. ) COMPLAINT FOR BREACHES OF

) FIDUCIARY DUTIES ANDBJ'S WHOLESALE CLUB, INC., LAURA J. ) INDIVIDUAL CLAIMS FORSEN, HERBERT J. ZARKIN, THOMAS J. ) VIOLATION OF SECTIONS 14(a)SHIELDS, PAUL DANOS, HELEN FRAME ) AND 20(a) OF THE SECURITIESPETERS, EDMOND J. ENGLLISH, ) EXCHANGE ACT OF 1934MICHAEL J. SHEEHAN, CHRISTINE M. )COURNOYER, LEONARD A. )SCHLESINGER, LEONARD GREEN & )PARTNERS, L.P., CVC CAPITAL )PARTNERS ADVISORY (U.S.), INC., )BEACON HOLDING INC.

' and BEACON )

MERGER SUB INC., ))Defendants. )

)

SUMMARY OF THE ACTION

1. Plaintiff brings this shareholder class action both for himself and on behalf of all

similarly situated holders of common stock of BJ's Wholesale Club, Inc. ("BJ's" or the

"Company") against BJ's, Leonard Green & Partners, L.P. ("LGP"), CVC Capital Partners

Advisory (U.S.), Inc. ("CVC"), Beacon Holding Inc. ("Beacon"), Beacon Merger Sub Inc.

("Merger Sub"), and the members of BJ's Board of Directors (the "Board"). This action arises

out of defendants' violations of state law and sections 14(a) and 20(a) of the Securities Exchange

Act of 1934 (the "Exchange Act") and U.S. Securities and Exchange Commission ("SEC") Rule

14a-9 promulgated thereunder. These violations arise in connection with defendants' attempts to

sell BJ's to LGP and CVC at an unfair price of $51.25 per share via an unfair process (the

"Proposed Acquisition"). Further, as part of their efforts to seek shareholder approval of the

Proposed Acquisition, the defendants have filed with the SEC a false and materially misleading

Form 14A Preliminary Proxy Statement (the "Proxy").

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2. In pursuing the unlawful plan to sell the Company via an unfair process and at an

unfair price, each of the defendants violated applicable law by directly breaching and/or aiding

and abetting the other defendants' breaches of their fiduciary duties of loyalty and due care, as

well as federal securities laws. This action seeks to enjoin the Individual Defendants (as defined

herein) from further breaching their fiduciary duties in their pursuit of a sale of the Company and

from seeking shareholder approval of the Proposed Acquisition without disclosing all material

information in the Proxy to BJ's shareholders in violation of sections 14(a) and 20(a) of the

Exchange Act.

3. BJ's introduced the warehouse club concept to New England in 1984 and has

since expanded to become a leading warehouse club operator in the Eastern United States. As of

January 29, 2011, BJ's operated 189 warehouse clubs in fifteen states.

4. Although the recession had an impact on the Company's operations and

profitability, in January 2010, the Company undertook strategic initiatives to optimize

performance, control expenses, increase margins, and build shareholder value. These key

initiatives provided BJ's with growth and continued improvement throughout 2011. Indeed, by

the end of January 2011, the Company increased its financial guidance stating that it expected to

report net income in the range of $144 million to $154 million for fiscal 2011, and earnings per

diluted share in the range of $2.62 to $2.82 per share. On May 18, 2011 BJ's reported strong net

sales increases of 10.0% to $2.77 billion, net income of $33.7 million, or $0.62 per diluted share,

for the first quarter ended April 30, 2011. These results for the first quarter of 2011 exceeded the

Company's guidance issued in January for net income in the range of $29.5 million to $31.5

million, or $0.54 to $0.58 per diluted share. This news coincided with recent analyst reports

suggesting that the Company is well-positioned for significant future growth. As analyst from

Janney Capital Markets commented, "we would argue that over the next 5 years, BJ will have

more growth opportunities geographically, perhaps arguing for an even higher multiple [than 9x

EBITDA]." Another analyst took a similar position, stating "BJ's ... long-term business growth

rates are significantly above the sector average of the United States listed companies."

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5. Nonetheless, a little over one month later, the Individual Defendants halted the

Company's stock price momentum with their announcement of the Proposed Acquisition for

consideration that substantially undervalues the Company. The Proposed Acquisition is also the

product of a flawed process designed to ensure the sale of BJ's to LGP and CVC is on terms

preferential to LGP and CVC.

6. LGP is well aware of BJ's improving financial metrics. LGP knew that the

economy and the Company's performance were recovering and that it had an opportunity to cash

in on BJ's undervalued stock price by acquiring the Company before it felt the full effects of the

economic turnaround and the positive financial results of BJ's strategic initiatives to improve

financial performance On July 1, 2010, LGP filed a Schedule 13D with the SEC disclosing that

affiliates of LGP beneficially owned approximately 9.5% of the outstanding stock of the

Company, which consists of 3.9% in common stock and 5.6% in underlying call options. Within

days, LGP was pressuring the Board to sell the entire Company and indicated that it had an

interest in purchasing the Company. From that point forward, BJ's never seriously considered

selling the Company to anyone other than LGP and its affiliates. Indeed, The Proposed

Acquisition is the result of an inadequate sales process that favored LGP and CVC and BJ's

management over other potential buyers, particularly Apollo Global Management LLC

("Apollo"), who unlike LGP and CVC, were likely to realize cost-saving synergies with BJ's.

According to The Wall Street Journal, Apollo, which already has an ownership stake in a

wholesale club operator located on the West Coast, offered $4 more per share more than LGP

and CVC has offered as part of the Proposed Acquisition. Accordingly, the net effect is that the

Board, by entering into the Proposed Acquisition: (i) failed to obtain fair value for BJ's

shareholders; and (ii) agreed to merger terms that unreasonably dissuade other potential buyers

from coming forward.

7. The Board further breached its fiduciary duties by agreeing to preclusive deal

protection devices in connection with the Agreement and Plan of Merger the Company entered

into on June 28, 2011 (the "Merger Agreement"). These provisions, which collectively preclude

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any competing offers for the Company, include: (i) a no-solicitation provision prohibiting the

Company from properly shopping the Company; (ii) a termination fee payable by the Company

to LGP and CVC for up to $80 million if an unsolicited superior offer materializes and is

accepted; and (iii) a three-day matching rights period during which LGP and CVC can match any

superior proposal received by the Company.

8. In an attempt to secure shareholder approval for the unfair Proposed Acquisition,

on July 21, 2011, the Individual Defendants and BJ's filed with the SEC and disseminated to BJ's

shareholders, the materially false and misleading Proxy. The Proxy, which recommends that

BJ's shareholders vote in favor of the Proposed Acquisition, omits and/or misrepresents material

information about the unfair sales process for the Company, the unfair consideration offered in

the Proposed Acquisition, and the actual intrinsic value of the Company. Among other

information, the Proxy omits and/or misrepresents material information in contravention of

sections 14(a) and 20(a) of the Exchange Act regarding the fairness opinion provided by BJ's

financial advisor, Morgan Stanley & Co. LLC ("Morgan Stanley"), including the data and inputs

underlying their valuation analyses.

9. As explained herein, the foregoing information is material to the impending

decision of BJ's shareholders whether or not to vote in favor of the Proposed Acquisition. As

such, defendants' violations of sections 14(a) and 20(a) of the Exchange Act threaten

shareholders with irreparable harm for which money damages are not an adequate remedy.

Thus, plaintiff seeks injunctive relief to ensure that defendants cure their violations of fiduciary

duty and sections 14(a) and 20(a) of the Exchange Act before BJ's shareholders are asked to vote

on the Proposed Acquisition.

10. To remedy the Individual Defendants' breaches of fiduciary duty and other

misconduct, plaintiff seeks, inter alia: (i) injunctive relief preventing consummation of the

Proposed Acquisition, unless and until the Company adopts and implements a procedure or

process to obtain a transaction that provides the best possible terms for shareholders, and

defendants disclose all material information concerning the Proposed Acquisition to BJ's

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shareholders; (ii) a directive to the Individual Defendants to exercise their fiduciary duties to

obtain a transaction which is in the best interests of BJ's shareholders; and (iii) rescission of, to

the extent already implemented, the Merger Agreement or any of the terms thereof.

JURISDICTION AND VENUE

11. This Court has jurisdiction over all claims asserted herein pursuant to section 27

of the Exchange Act for violations of sections 14(a) and 20(a) of the Exchange Act and SEC

Rule 14a-9 promulgated thereunder. This Court has jurisdiction over the subject matter of this

action pursuant to 28 U.S.C. §1331.

12. Venue is proper in this District because BJ's has its principle place of business in

this District. Plaintiffs claims arose in this District, where most of the actionable conduct took

place, where most of the documents are electronically stored and where the evidence exists, and

where virtually all the witnesses are located and available to testify at the jury trial permitted on

these claims in this Court. Moreover, each of the Individual Defendants, as Company officers

and/or directors, has extensive contacts within this District.

PARTIES

13. Plaintiff Matthew Puzey is, and has been, a shareholder of BJ's at all relevant

times.

14. Defendant BJ's is a Delaware corporation and a leading warehouse retail chain in

the Eastern United States, where it introduced the wholesale club concept to New England in

1984. Today, BJ's operates 190 warehouse clubs in fifteen states, up from 155 clubs at the start

of 2005. Upon completion of the Proposed Acquisition, BJ's will become a wholly owned

subsidiary of Beacon. BJ's principal executive offices are located at 25 Research Drive,

Westborough, Massachusetts.

15. Defendant Laura J. Sen ("Sen") is BJ's Chief Executive Officer ("CEO") and has

been since February 2009. Sen is also BJ's President and a director and has been since January

2008. Sen was BJ's Chief Operating Officer from January 2008 to February 2009 and Executive

Vice President of Merchandising and Logistics from January 2007 to January 2008 and from

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1997 to March 2003. Upon completion of the Proposed Acquisition, Sen is expected to remain

at BJ's.

16. Defendant Herbert J. Zarkin ("Zarkin") is BJ's Chairman of the Board and has

been since July 1997 and a director and has been since November 1996. Zarkin has also served

as a consultant to BJ's CEO and senior management since May 2010. Zarkin was BJ's CEO from

February 2007 to December 2008; President from February 2007 to January 2008; and Interim

CEO from November 2006 to February 2007.

17. Defendant Thomas J. Shields ("Shields") is BJ's Lead Director and has been since

2005 and a director and has been since July 1997. Shields is also Chairman of BJ's Independent

Committee, which was established in August 2010, to explore and evaluate strategic alternatives

and recommended that BJ's Board to approve the Proposed Acquisition.

18. Defendant Paul Danos ("Danos") is a BJ's director and has been since May 2004.

Danos, despite not being a member of the Independent Committee, was permitted to attend

Independent Committee meetings throughout the course of the deal negotiations.

19. Defendant Helen Frame Peters ("Peters") is a BJ's director and has been since

May 2004. Peters is also a member of BJ's Independent Committee.

20. Defendant Edmond J. English ("English") is a BJ's director and has been since

September 2006. English, despite not being a member of the Independent Committee, was

permitted to attend Independent Committee meetings throughout the course of the deal

negotiations.

21. Defendant Michael J. Sheehan ("Sheehan") is a BJ's director and has been since

March 2008. Sheehan is also a member of BJ's Independent Committee.

22. Defendant Christine M. Cournoyer ("Cournoyer") is a BJ's director and has been

since December 2008. Cournoyer is also a member of BJ's Independent Committee.

23. Defendant Leonard A. Schlesinger ("Schlesinger") is a BJ's director and has been

since September 2009. Schlesinger is also a member of BJ's Independent Committee.

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24. Defendant LGP is a Delaware limited partnership and a leading private equity

finn with over $9 billion of equity capital under management. LGP invests in market leading

companies across a broad range of industries. LGP's principal executive offices are located at

11111 Santa Monica Boulevard, Suite 2000, Los Angeles, California.

25. Defendant CVC is an English public limited company and a leading private equity

and investment advisory finn that has raised over $44 billion of investor funds. CVC funds seek

to identify attractive investments and then develop sustainable, long-term value in close

partnership with management teams. CVC's principal executive offices are located at 712 Fifth

Avenue, 43rd Floor, New York, NY 10019.

26. Defendant Beacon is a Delaware corporation and an affiliate of LGP and CVC.

Beacon was formed by affiliates of LGP and CVC solely for the purpose of entering into the

Merger Agreement and completing the Proposed Acquisition contemplated by the Merger

Agreement and the related financing transactions.

27. Defendant Merger Sub is a Delaware corporation and a wholly owned subsidiary

of Beacon. Merger Sub is also an affiliate of LGP and CVC. Merger Sub was formed solely for

the purpose of entering into the Merger Agreement and completing the Proposed Acquisition

contemplated by the Merger Agreement and the related financing transactions. Upon completion

of the Proposed Acquisition, Merger Sub will merge with and into BJ's and will cease its

separate existence.

28. The defendants named above in Irlf15-23 are sometimes collectively referred to

herein as the "Individual Defendants."

INDIVIDUAL DEFENDANTS' FIDUCIARY DUTIES

29. Under Delaware law, in any situation where the directors of a publicly traded

corporation undertake a transaction that will result in a change in corporate control, the directors

have an affirmative fiduciary obligation to obtain the highest value reasonably available for the

corporation's shareholders, including a significant control premium. This duty arises in at least

the following three circumstances: (i) when a corporation initiates an active bidding process

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seeking to sell itself or to effect a business reorganization involving a clear break-up of the

company; (ii) where, in response to a bidder's offer, a target abandons its long-term strategy and

seeks an alternative transaction involving the break-up of the company; or (iii) when approval of

a transaction results in a sale or change of control. To diligently comply with these duties,

neither the directors nor the officers may take any action that:

(a) adversely affects the value provided to the corporation's shareholders;

(b) will discourage, inhibit, or deter alternative offers to purchase control of

the corporation or its assets;

(c) contractually prohibits themselves from complying with their fiduciary

duties;

(d) will otherwise adversely affect their duty to secure the best value

reasonably available under the circumstances for the corporation's shareholders; and/or

(e) will provide the directors and/or officers with preferential treatment at the

expense of, or separate from, the public shareholders.

30. In accordance with their duties of loyalty and good faith, the Individual

Defendants, as directors and/or officers of BJ's, are obligated under Delaware law to refrain

from:

(a) participating in any transaction where the directors or officers' loyalties

are divided;

(b) participating in any transaction where the directors or officers receive, or

are entitled to receive, a personal financial benefit not equally shared by the public shareholders

of the corporation; and/or

(c) unjustly enriching themselves at the expense or to the detriment of the

public shareholders.

31. Defendants, separately and together, in connection with the Proposed Acquisition,

are knowingly or recklessly violating their fiduciary duties and aiding and abetting such

breaches, including their duties of loyalty, good faith, and independence owed to plaintiff and

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other public shareholders of BJ's. Certain of the defendants stand on both sides of the

transaction, are engaging in self-dealing; and are obtaining for themselves personal benefits,

including personal financial benefits not shared equally by plaintiff or the Class (as defined

herein). Accordingly, the Proposed Acquisition will benefit the Individual Defendants in

significant ways not shared with the Class members. As a result of the Individual Defendants'

self-dealing and divided loyalties, neither plaintiff nor the Class will receive adequate or fair

value for their BJ's common stock in the Proposed Acquisition.

32. Because the Individual Defendants are knowingly or recklessly breaching their

duties of loyalty, good faith, and independence in connection with the Proposed Acquisition, the

burden of proving the inherent or entire fairness of the Proposed Acquisition, including all

aspects of its negotiation, structure, price, and terms, is placed upon defendants as a matter of

law.

BACKGROUND TO THE PROPOSED ACQUISITION

33. On July 1, 2010, LGP filed a Schedule 13D with the SEC disclosing that affiliates

of LGP beneficially controlled approximately 9.5% of the outstanding Company common stock.

LGP further disclosed that it intended to contact representatives of the Company to discuss a

"going-private" transaction, among other things. Later on July 1, 2010, Jonathan D. Sokoloff

("Sokoloff'), a Managing Partner of LGP, called defendant Zarkin to inform him that LGP had

filed the Schedule 13D earlier that day. Sokoloff indicated that he would like to arrange a

meeting between the Company and representatives of LGP. This would be the start of LGP's

efforts to acquire the Company through a process that it would tilt in its own favor rather than

one that would benefit all the shareholders. As a purchaser of BJ's, LGP was not worried about

maximizing shareholder value, but rather was interested in obtaining the Company for the

cheapest price possible.

34. On July 6, 2010, the Board held a meeting where defendant Zarkin reported on his

conversation with Sokoloff. On July 7, 2010, the Company engaged Greenhill & Co., Inc. to

advise it on strategic alternatives. On July 29, 2010, Jonathan A. Seiffer ("Seiffer"), a partner at

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LGP had a discussion with Zarkin where Seiffer indicated LGP would be interested in

participating if the Company solicited proposals to be acquired.

35. On August 24, 2010, the Board formed a committee (the "Transaction

Committee"), comprised of defendants Shields, Cournoyer, Peters, Schlesinger, and Sheehan to

recommend to the Board "any potential transaction with [LGIT and other strategic alternatives.

On September 13, 2010, the Transaction Committee informed LGP — before any other potential

suitors — that there would be a process for soliciting proposals to acquire the Company. Thus,

LGP was in the driver's seat to acquire the Company through its early knowledge of the process

the Board had initiated. On September 23, 2010, defendant Zarkin contacted Sokoloff again to

inform him that the Transaction Committee was "making progress." This progress, however,

was not quick enough for Sokoloff as he contacted Zarkin to express LGP's view that the

Company should proceed more quickly.

36. On November 10, 2010, the Transaction Committee engaged Morgan Stanley as

its financial advisor. On December 2, 2010, Morgan Stanley had a meeting with the Transaction

Committee to present a historical share performance review, analysis of current stockholders,

which included LGP, valuation ranges, discounted cash flow analysis, future stock price analysis,

and leveraged buyout analysis.

37. On December 27, 2010, LGP requested a meeting with the Company. The Board

agreed. Sokoloff, Seiffer and others from LGP and representatives from the Company met on

January 14, 2011. As the Proxy states, LGP wanted to discuss a "going-private" transaction —

not a transaction with a strategic buyer or strategic alternatives that would keep the Company a

publicly traded entity. Thus, LGP wished to stifle a truly fair process so that it could purchase

the Company for the cheapest price possible. LGP also disclosed that if it bought the Company

it would retain current management and implement management's current business plan. Thus,

LGP was not advocating changes in the management's leadership or business plan. Rather, LGP

wanted to acquire the Company while its stock value was low and its financial prospects bright.

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38. On January 25, 2011, the Transaction Committee held a meeting with other

directors to discuss possible financial and strategic buyers. At the meeting, the directors decided

to make a public announcement of the sales process, which it did on February 3, 2011. Morgan

Stanley also stated without an explanation at the meeting that there would be limited interest by

strategic buyers.

39. Quite the opposite to what Morgan Stanley had predicted, from February 11 to

February 15, 2011, Morgan Stanley received unsolicited e-mails from an unidentified strategic

buyer expressing an interest in a strategic alternative for the Company. In addition to the

strategic buyer, on February 28, 2011, Morgan Stanley reported to the Transaction Committee

that it had been contacted about a potential transaction involving certain undisclosed assets of the

Company.

40. On March 7, 2011, the Board held a meeting with Morgan Stanley and discussed

a confidential offering memorandum that would be sent to a select list of private equity firms.

Astonishingly, the Board determined that no strategic buyer should be solicited, despite already

receiving interest from at least one strategic purchaser.

41. Morgan Stanley sent twenty-three confidentiality and standstill agreements to

private equity firms only and negotiated and signed non-disclosure agreements with thirteen of

them, including LGP and CVC. From April 12 to April 25, 2011, Morgan Stanley received bids

ranging from $50 to $54 per share.

42. In early April, a second strategic buyer ("Company A") contacted Morgan Stanley

about acquiring the Company at a price ranging from $55 to $60 per share. On April 18, 2011,

rather than further explore a transaction with Company A, the Board decided not to continue

discussions because of purported antitrust risks, despite Company A valuing the Company higher

than any private equity purchaser.

43. On April 20, 2011, the Transaction Committee requested Morgan Stanley to

obtain a second round of proposals for the Company from only private equity suitors. On April

21, 2011, one of the four participants that Morgan Stanley solicited in a second round of bidding

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submitted an expression of interest between $50 to $53 per share. On April 29, 2011, all four

private equity firms were provided the privileged position of gaining access to an electronic data

room containing business, legal, and financial information concerning the Company. No

strategic buyers were provided similar access.

44. On May 8, 2011, LGP asked Morgan Stanley whether the Company would accept

a joint proposal between it and CVC. Morgan Stanley approved LGP's request to include CVC

in a joint bid for the Company, despite the effect of limiting the competitive bidding process.

45. On May 27, 2011, Morgan Stanley sent final bid invitation letters to LGP and

CVC and another private equity bidder. Neither the Board or Morgan Stanley had sought out a

strategic buyer for BJ's since unilaterally deciding not to pursue a sale to Company A.

46. On June 16, 2011, LGP and CVC offered $50 per share to acquire the Company.

The Board rejected this offer and countered at $55 per share, which was the low end of the range

that Company A indicated it believed the Company was worth. On June 23, 2011, LGP and

CVC offered $50.75 per share for the Company, which the Board rejected and countered back at

$52.50 per share. On June 24, 2011, the parties agreed to a price of $51.25 per share.

47. On June 27, 2011, LGP and CVC had a meeting with defendant Sen and another

BJ's executive where they discussed an equity incentive plan for them and the officers that would

be staying on at the Company.

48. The culmination of the unfair process that resulted in inadequate consideration

occurred on June 28, 2011, when the Board and LGP and CVC entered into the unfair Merger

Agreement and announced the Proposed Acquisition the following morning.

THE PROPOSED ACQUISITION

49. On June 29, 2011, BJ's issued the following press release announcing that the

Individual Defendants had agreed to sell BJ's to LGP and CVC for $51.25 in cash per BJ's share:

WESTBOROUGH, Mass. — June 29, 2011 — BJ's Wholesale Club, Inc. (NYSE:BJ) ("BJ's" or the "Company") today announced that it has entered into adefinitive agreement to be acquired by affiliates of Leonard Green & Partners,L.P. ("LGP") and funds advised by CVC Capital Partners ("CVC") in an all-cashtransaction valued at approximately $2.8 billion. Under the terms of theagreement, BJ's shareholders will receive $51.25 per share in cash for each share

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of BJ's common stock they hold, representing an approximately 38% premium tothe closing price of BJ's shares on June 30, 2010, the day before LGP announcedits 9.5% ownership stake in the Company, and an approximately 7% premium tothe closing price of BJ's shares on June 28, 2011.

BJ's Board of Directors, upon the recommendation of its committee ofindependent directors and following a process that began in February 2011, inwhich it explored and evaluated strategic alternatives, has unanimously approvedthe merger agreement and recommends that all BJ's shareholders vote in favor ofthe transaction.

Thomas Shields, Lead Director and Chairman of the independent committee, said,"We are very pleased to announce a transaction that provides our shareholderswith excellent value and the certainty of a significant cash premium for theirshares. Today's announcement is the result of a comprehensive process in whichan independent committee of our Board, with the assistance of its outsidefinancial advisor, thoroughly explored and carefully considered alternatives toenhance value for our shareholders. In connection with this process, CVC andLGP made a definitive offer to acquire BJ's, and this offer was fully negotiated bythe Company. BJ's Board of Directors believes that this transaction maximizesvalue and is in the best interests of our shareholders, employees and members."

Laura Sen, President and Chief Executive Officer, said, "BJ's will benefit from thecontinued execution of our business plan and the significant retail expertise of ournew partners at LGP and CVC, as well as from continued investments in ourclubs, our people and technology, and the future of our business. Our memberswill continue to enjoy the top-quality merchandise, outstanding savings and greatservice that they've come to expect from BJ's on every visit."

Jonathan Seiffer, Partner of LGP, said "BJ's is the clear leader in the wholesaleclub industry in the eastern United States with strong brand equity and a provenand successful strategy. We are pleased to partner with Laura and themanagement team and look forward to the next phase of the Company's growth."

Cameron Breitner, Managing Director of CVC, said, "We are delighted to work inpartnership with the BJ's management team and our friends at LGP to support thecontinued growth of the Company. With its leading market positions, outstandingvalue proposition and service, and valued employee base, BJ's is very wellpositioned to extend its history of strong financial and operating performanceThis transaction will build upon CVC's significant history of investing in world-class businesses in the consumer and retail sectors."

The merger is subject to the approval of BJ's shareholders, customary closingconditions and regulatory approvals. The transaction is expected to close duringthe fourth quarter of 2011. BJ's will file a preliminary proxy statement with theSEC containing detailed information about the transaction and the Board andindependent committee process. Once the SEC completes its review of thepreliminary proxy statement, BJ's will file a definitive proxy statement with theSEC and distribute it to shareholders.

Morgan Stanley & Co. Inc. acted as financial advisor to BJ's, and Wilmer CutlerPickering Hale and Don- LLP served as its legal counsel. Potter Anderson &Corroon LLP served as legal counsel to BJ's committee of independent directors.Deutsche Bank Securities Inc., Citigroup Global Markets Inc., Barclays CapitalInc. and Jefferies & Company, Inc. acted as financial advisors, and, in addition to

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General Electric Capital Corporation and Wells Fargo Capital Finance, LLC,provided fully committed financing to CVC and LGP. Latham & Watkins LLPand Simpson Thacher & Bartlett LLP acted as legal advisors to LGP and CVC,respectively.

FAILURE TO MAXIMIZE SHAREHOLDER VALUE

50. In order to meet their fiduciary duties, the Individual Defendants are obligated to

explore transactions that will maximize shareholder value, and not structure a preferential deal

for themselves. Due to the Individual Defendants' eagerness to enter into a transaction with LGP

and CVC they failed to implement a process to obtain the maximum price for BJ's shareholders.

51. As a result of defendants' conduct, BJ's public stockholders have been and will

continue to be denied the fair process and arm's-length negotiated terms to which they are

entitled in a sale of their Company. The consideration reflected in the Merger Agreement does

not reflect the true inherent value of the Company at the time the Proposed Acquisition was

announced.

52. The consideration of $51.25 per BJ's share offered in the Proposed Acquisition is

grossly inadequate. This consideration represents a mere 7% premium to the price at which BJ's

stock was trading prior to the announcement of the Proposed Acquisition. In addition, the

$51.25 per share proposed price is below the May 18, 2011 52-week high of $52.46. On

February 3, 2011, the Company publicly announced that it was looking at strategic alternatives.

Following the announcement, on April 28, 2011, media reports indicated that Apollo had

approached the Company with an offer worth more than $3 billion. Moreover, LGP and CVC

are not alone in seeing the potential in BJ's. Numerous analysts, just prior to the announcement

of the Proposed Acquisition, valued BJ's substantially higher than proposed purchase price of

$51.25. For example:

(a) Analysts with Jeffries & Company, Inc., which is providing debt financing

for the Proposed Acquisition, had a target price of $60 per share on June 23, 2011;

(b) An analyst with Wall Street Strategies, Inc. had a price target of $55 per

share on June 17, 2011;

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(c) Analysts with Northcoast Research Partners, LLC had a price target of $55

per share on May 19, 2011; and

(d) Analysts with Janney Capital Markets had a price target of $52 per share

on June 17, 2011.

THE PRECLUSIVE DEAL PROTECTION PROVISIONS

53. On June 29, 2011, the Company filed a Form 8-K with the SEC wherein it

disclosed the Merger Agreement.

54. Under Section 6.1(a) of the Merger Agreement, BJ's is subject to a no-solicitation

clause that prohibits the Company from seeking a superior offer for its shareholders. Section

6.1(a) states that:

No Solicitation or Negotiation. Except as set forth in this Section 6.1, until thetermination of this Agreement in accordance with the terms hereof (the "SpecifiedTime"), neither the Company nor any of its Subsidiaries shall, and the Companyshall use its reasonable best efforts to cause its directors, officers, employees,investment bankers, attorneys, accountants and other advisors or representatives(such directors, officers, employees, investment bankers, attorneys, accountants,other advisors and representatives, collectively, "Representatives") not to, directlyor indirectly:

(i) solicit, initiate or knowingly encourage any inquiries or the making of anyproposal or offer that constitutes, or could reasonably be expected to lead to, anyAcquisition Proposal;

(ii) amend, or grant a waiver or release under, any standstill or similar agreement;or

(iii) enter into, continue or otherwise participate in any discussions or negotiationsregarding, or furnish to any person any non-public information for the purpose ofencouraging or facilitating, any Acquisition Proposal.

55. Though the Merger Agreement ostensibly has a purported "fiduciary out"

provision that allows the Company to negotiate with other bidders, this provision is actually

illusory. In order for BJ's to negotiate with any other suitors, the potential acquirer would first

have to make an unsolicited superior offer. Without access to non-public information, which the

Company is prevented from offering under the Merger Agreement prior to the receipt of an offer

that the Company reasonably expects to lead to a superior deal, no other bidder will emerge to

make such an offer.

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56. Section 6.1(b) of the Merger Agreement conveys upon LGP and CVC unlimited

information and matching rights should BJ's receive any other acquisition proposal, which is

defined so broadly as to cover virtually any offer to buy any part of the Company. Section 6.1(b)

prevents BJ's from changing its recommendation to shareholders except in the extremely

unlikely situation where the Company received an unsolicited bona fide written superior

proposal. Even if the Company does receive an unsolicited offer, it is required to provide all

information regarding that offer to LPG and CVC within twenty-four hours, whereupon LPG

and CVC have unlimited opportunities to adjust their offer to prevent the Board from changing

its recommendation to shareholders.

57. Furthermore, BJ's is subject to another preclusive lock-up provision in Section 8.3

of the Merger Agreement. Section 8.3 states that BJ's must pay to LGP and CVC a termination

fee of at least $80 million if it accepts a superior proposal. This provision is unfair to the

Company's shareholders and contrary to their interests because it deters and prevents the

submission of higher proposals, especially in connection with the no-solicitation clause in

Section 6.1(a). The following table illustrates how excessive the termination fee is based on both

a percentage of the Proposed Acquisition's equity value and the additional per share cost that

would be thrust on any competing bidder and not be disbursed to the Company's shareholders:

Termination Fee

Termination Fee $80,000,000

Fee Per Share $1.46

Fee as % of TotalEquity Value 2.84%

58. Next, section 6.5 of the Merger Agreement binds the Company to a Force-the-

Vote provision, whereby BJ's is required to hold a shareholder vote on the Proposed Acquisition

even if it has received a bona fide superior proposal and the Board has changed its

recommendation in favor of the Proposed Acquisition.

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59. The provisions above, which will serve to unreasonably deter and discourage

superior offers from other interested parties, were agreed to by the Individual Defendants to help

secure the personal benefits and unfair profits afforded to them through the Proposed Acquisition

and all but ensure that no other bidder steps forward to submit a superior proposal.

THE MATERIALLY MISLEADING PROXY

60. In order to secure shareholder approval of this unfair deal, defendants filed the

materially misleading Proxy on July 21, 2011. The Proxy, which recommends that BJ's

shareholders vote in favor of the Proposed Acquisition, omits and/or misrepresents material

information about the process that took place in selling the Company, the actual intrinsic value of

the Company, the analyses performed by Morgan Stanley in connection with the rendering of its

fairness opinion, and the basis for agreeing to accept the $51.25 per share consideration being

offered in the Proposed Acquisition. Specifically the Proxy omits/or misrepresents the material

information set forth below in contravention of sections 14(a) and 20(a) of the Exchange Act and

the Board's fiduciary duty of candor.

61. The Sales Process Leading to the Proposed Acquisition. In the Background of

the Merger section on pages 28-36 of the Proxy, the Proxy fails to disclose: (i) the strategic

alternatives available to BJ's other than a sale of the Company; (ii) why Morgan Stanley believed

there would be little interest from strategic buyers in acquiring the Company; (iii) how the Board

derived $55 per share as an adequate price on June 20, 2011; and (iv) how the Board derived

$52.50 per share as an adequate price on June 20, 2011; and (v) why the Board decided against

soliciting other potential strategic suitors and elected to negotiate exclusively with private equity

suitors. Without the information set forth above, shareholders are unable to determine the

sufficiency of the process that led to the Proposed Acquisition and whether the Board took all

steps to maximize shareholder value.

62. Morgan Stanley's Public Market Trading Benchmarks. In the discussion of

Morgan Stanley's Public Market Trading Benchmarks on pages 47-48 of the Proxy, the Proxy

fails to disclose: (i) the summary statistics for each of the comparable companies; (ii) what

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criteria were used to select the companies and multiples Morgan Stanley considered; (iii) the

observed multiples for each of the comparable companies; and (iv) the reasons why the

Company predicted $200 million of share purchases in the fiscal year ending 2012 and $100

million of share repurchases in the fiscal year ending 2013 and thereafter. This information is

material because without the information set forth above, shareholders are unable to

independently assess whether the implied prices per share derived by Morgan Stanley as set forth

in the Proxy are based on an appropriate set of companies and multiples. Accordingly,

shareholders cannot determine whether Morgan Stanley's analysis, as set forth in the Proxy, is an

adequate measure of this value assessment and what weight, if any, to place on the fairness

opinion in deciding how to vote on the Proposed Acquisition.

63. Morgan Stanley's Discounted Cash Flow Analysis. In the description of Morgan

Stanley's Discounted Cash Flow Analysis on pages 48-49 of the Proxy, the Proxy fails to

disclose: (i) the inputs and assumptions used by Morgan Stanley to derive the 8.5% discount rate

used in its analysis; (ii) the inputs and assumptions used by Morgan Stanley and management to

derive the range of EBITDA multiples used in its analysis of 5.25x to 6.25x; (iii) the definition

of "unlevered future free cash flows"; (iv) what BJ's unlevered free cash flows were or any inputs

necessary to derive such figures; (v) how Morgan Stanley derived the five-year EBITDA

estimate for purposes of its terminal value calculation; (vi) what other companies with growth

and margin profiles similar to those of the Company's did Morgan Stanley review to select the

range of multiples for its analysis and what were the multiples at those companies; (vii) whether

and how stock based compensation was considered in the analysis; and (viii) how Morgan

Stanley decided on a 5% growth rate in net sales. Because the Discounted Cash Flow Analysis is

very sensitive to its inputs, specifically the EBITDA multiples and discount rates selected to

calculate estimated terminal values, this information is critical to shareholders' understanding of

how the analysis was performed, whether that analysis was performed properly, and in turn, what

weight, if any, to place on Morgan Stanley's Discounted Cash Flow Analysis (and its fairness

opinion generally) when determining whether to vote for the Proposed Acquisition.

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64. Morgan Stanley's Precedent Change of Control Premiums Analysis. In the

description of Morgan Stanley's Precedent Change of Control Premiums Analysis on page 50 of

the Proxy, the Proxy fails to disclose: (i) what companies were used in the analysis; and (ii) what

criteria were used to select the companies and financial metrics and/or multiples Morgan Stanley

considered to determine the premiums paid. Without the information set forth above,

shareholders are unable to independently assess whether Morgan Stanley's analysis, as set forth

in the Proxy, is an adequate measure of this value assessment and what weight, if any, to place

on the fairness opinion in deciding how to vote on the Proposed Acquisition.

65. Morgan Stanley's Sell-Side Research Analysts' Future Price Targets. In the

description of Morgan Stanley's Sell-Side Research Analysts' Future Price Targets on page 47 of

the Proxy, the Proxy fails to disclose: (i) who the sell-side analysts were; (ii) what firm the

financial analysts worked for; (iii) why buy-side analysts were not used; and (iv) the date at

which the analysts provided their future price targets. Without the information set forth above,

shareholders are unable to independently assess whether Morgan Stanley's analysis, as set forth

in the Proxy, is an adequate measure of this value assessment and what weight, if any, to place

on the fairness opinion in deciding how to vote on the Proposed Acquisition.

66. Morgan Stanley's Hypothetical Future Stock Price Analysis. In the description

of Morgan Stanley's Hypothetical Future Stock Price Analysis on page 49 of the Proxy, the

Proxy fails to disclose: (i) the reason for choosing earnings ratios of 13.8x and 15.0x; (ii) the

reason for choosing a discount rate of 8.5% for the Status Quo scenario and 9.0% for the

Leveraged Share Repurchase scenario; and (iii) why the Leveraged Share Repurchase analysis

assumed $250 million in incremental share repurchases funded through borrowing, especially

given that the Public Market Trading Benchmarks used different figures of $200 million in

repurchases for 2012 and $100 million in repurchases for 2013. Because the Hypothetical Future

Stock Price Analysis is very sensitive to its inputs, specifically the earnings ratios and discount

rates selected, this information is critical to shareholders' understanding of how the analysis was

performed, whether that analysis was performed properly, and in turn, what weight, if any, to

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place on Morgan Stanley's Hypothetical Future Stock Price Analysis (and its fairness opinion

generally) when determining whether to vote for the Proposed Acquisition.

67. Morgan Stanley's Leveraged Buyout Analysis. In the description of Morgan

Stanley's Leveraged Buyout Analysis on page 50 of the Proxy, the Proxy fails to disclose: (i)

why Morgan Stanley chose 2016 as the year a financial buyer would attempt to realize a return

on its investment in the Company; (ii) what the management projections were that were used in

the analysis; and (iii) why Morgan Stanley assumed a financial buyer has a required internal rate

of 15%-20%. Without the information set forth above, shareholders are unable to independently

assess whether Morgan Stanley's analysis, as set forth in the Proxy, is an adequate measure of

this value assessment and what weight, if any, to place on the fairness opinion in deciding how to

vote on the Proposed Acquisition.

THE UNFAIR AND INADEQUATE PROCESS

68. In order to meet their fiduciary duties, the Individual Defendants are obligated to

explore transactions that will maximize shareholder value, and not structure a preferential deal

for themselves. Due to the Individual Defendants' eagerness to enter into a transaction with LGP

and CVC, they failed to implement a process to obtain the maximum value for BJ's shareholders.

69. As a result of defendants' conduct, BJ's public stockholders have been and will

continue to be denied the fair process and arm's-length negotiated terms to which they are

entitled in a sale of their Company. The consideration reflected in the Proposed Acquisition does

not reflect the true inherent value of the Company that only the Individual Defendants, as

directors and officers of BJ's and LGP and CVC had access to at the time the Proposed

Acquisition was announced.

SELF-DEALING

70. Because the Individual Defendants dominate and control the business and

corporate affairs of BJ's and have access to material, non-public information concerning BJ's

financial condition and business prospects, there exists an imbalance and disparity of knowledge

and economic power between them and the public shareholders of BJ's. Therefore, it is

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inherently unfair for the Individual Defendants to execute and pursue any merger or acquisition

under which they will reap disproportionate benefits to the exclusion of obtaining the best

shareholder value reasonably available. Nonetheless, the Proposed Acquisition represents an

effort by the Individual Defendants to aggrandize their own financial position and interests at the

expense of and to the detriment of the Class by denying the Class members their shareholders'

rights by selling BJ's via an unfair process and at an inadequate price. Accordingly, the

Proposed Acquisition will benefit the Individual Defendants at the expense of BJ's shareholders.

71. Instead of attempting to negotiate an agreement reflecting the best consideration

reasonably available for BJ's shareholders who they are duty-bound to serve, the Individual

Defendants disloyally placed their own interests first, and tailored the terms and conditions of the

Proposed Acquisition to meet their own personal needs and objectives by agreeing to sell the

Company to a buyer that would retain the Company's management going forward.

72. In light of the foregoing, the Individual Defendants must, as their fiduciary

obligations require:

• Withdraw their consent to the acquisition of BJ's and allow the shares to tradefreely - without impediments, including the termination fee, matching rights, andno solicitation provision;

• Act independently so that the interests of BJ's public stockholders will beprotected;

• Adequately ensure that no conflicts of interest exist between defendants' owninterests and their fiduciary obligation to maximize stockholder value or, if suchconflicts exist, to ensure that all conflicts be resolved in the best interests of BJ'spublic stockholders; and

• Solicit competing bids to LGP and CVC's offer to ensure that the Company'sshareholders are receiving the maximum value for their shares.

CLASS ACTION ALLEGATIONS

73. Plaintiff brings this action for himself and on behalf of all holders of BJ's

common stock which have been or will be harmed by the conduct described herein (the "Class").

Excluded from the Class are the defendants and any individual or entity affiliated with any

defendant.

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74. This action is properly maintainable as a class action.

75. The Class is so numerous that joinder of all members is impracticable. According

to BJ's SEC filings, there were more than over 54.9 million shares of BJ's common stock

outstanding as of June 27, 2011.

76. There are questions of law and fact which are common to the Class and which

predominate over questions affecting any individual Class member. The common questions

include, inter alia, the following:

(a) whether the Proxy contains material misstatements or omissions in

violation of sections 14(a) and 20(a) of the Exchange Act;

(b) whether the Individual Defendants have breached their fiduciary duties of

undivided loyalty, independence, or due care with respect to plaintiff and the other members of

the Class in connection with the Proposed Acquisition;

(c) whether the Individual Defendants are engaging in self-dealing in

connection with the Proposed Acquisition;

(d) whether the Individual Defendants have breached their fiduciary duty of

candor to plaintiff and the other members of the Class in connection with the Proposed

Acquisition by soliciting shareholder vote in favor of the Proposed Acquisition based upon

inadequate disclosures;

(e) whether the Individual Defendants have breached any of their other

fiduciary duties owed to plaintiff and the other members of the Class in connection with the

Proposed Acquisition, including the duties of good faith, diligence, and fair dealing;

(f) whether BJ's aided and abetted the Individual Defendants' breaches of

fiduciary duties;

(g) whether LGP, CVC, Beacon, and Merger Sub aided and abetted the

Individual Defendants' breaches of fiduciary duties;

(h) whether the Individual Defendants are engaging in self-dealing in

connection with the Proposed Acquisition;

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(i) whether the Individual Defendants, in bad faith and for improper motives,

have impeded or erected barriers to discourage other offers for the Company or its assets; and

(1) whether plaintiff and the other members of the Class would suffer

irreparable injury were the transactions complained of herein consummated.

77. Plaintiffs claims are typical of the claims of the other members of the Class and

plaintiff does not have any interests adverse to the Class.

78. Plaintiff has retained competent counsel experienced in litigation of this nature

and will fairly and adequately represent and protect the interests of the Class.

79. The prosecution of separate actions by individual members of the Class would

create a risk of inconsistent or varying adjudications with respect to individual members of the

Class which would establish incompatible standards of conduct for the party opposing the Class.

80. Plaintiff anticipates that there will be no difficulty in the management of this

litigation. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy.

81. Defendants have acted on grounds generally applicable to the Class with respect

to the matters complained of herein, thereby making appropriate the relief sought herein with

respect to the Class as a whole.

COUNT I

Against the Individual Defendants, BJ's, LGP, and CVC for Violations ofSection 14(a) of the Exchange Act and SEC Rule 14a-9 Promulgated Thereunder

82. Plaintiff repeats and realleges each and every allegation contained above as if

fully set forth herein.

83. The Individual Defendants, BJ's, LGP, and CVC disseminated the false and

misleading Proxy specified above, which failed to disclose material facts necessary in order to

make the statements made, in light of the circumstances under which they were made, not

misleading.

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84. The Proxy was prepared, reviewed, and/or disseminated by the Individual

Defendants, BJ's, LGP, and CVC. It misrepresented and/or omitted material facts, including

material information about the actual intrinsic value of the Company's assets.

85. In so doing, the Individual Defendants, BJ's, LGP, and CVC made untrue

statements of material facts and omitted to state material facts necessary to make the statements

that were made not misleading in violation of section 14(a) of the Exchange Act and SEC Rule

14a-9 promulgated thereunder. By virtue of their positions within the Company, the Individual

Defendants, BJ's, LGP, and CVC were aware of this information and of their duty to disclose this

information in the Proxy.

86. The Individual Defendants, BJ's, LGP, and CVC were at least negligent in filing

the Proxy with these materially false and misleading statements.

87. The omissions and false and misleading statements in the Proxy are material in

that a reasonable shareholder would consider them important in deciding how to vote on the

Proposed Acquisition. In addition, a reasonable investor would view a full and accurate

disclosure as significantly altering the "total mix" of information made available in the Proxy and

in other information reasonably available to shareholders.

88. By reason of the foregoing, the Individual Defendants, BJ's, LGP, and CVC have

violated section 14(a) of the Exchange Act and SEC Rule 14a-9(a) promulgated thereunder.

89. Because of the false and misleading statements in the Proxy, plaintiff is

threatened with irreparable harm, rendering money damages inadequate. Therefore, injunctive

relief is appropriate to ensure defendants' misconduct is corrected.

COUNT II

Against the Individual Defendants and BJ's forViolation of Section 20(a) of the Exchange Act



91. The Individual Defendants acted as controlling persons of BJ's within the

meaning of section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as

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officers and/or directors of BJ's, and participation in and/or awareness of the Company's

operations and/or intimate knowledge of the false statements contained in the Proxy filed with

the SEC, they had the power to influence and control and did influence and control, directly or

indirectly, the decision-making of the Company, including the content and dissemination of the

various statements which plaintiff contends are false and misleading.

92. Each of the Individual Defendants and BJ's was provided with or had unlimited

access to copies of the Proxy and other statements alleged by plaintiff to be misleading prior to

and/or shortly after these statements were issued and had the ability to prevent the issuance of the

statements or cause the statements to be corrected.

93. In particular, each of the Individual Defendants had direct and supervisory

involvement in the day-to-day operations of the Company, and, therefore, is presumed to have

had the power to control or influence the particular transactions giving rise to the securities

violations as alleged herein, and exercised the same. The Proxy at issue contains the unanimous

recommendation of each of the Individual Defendants to approve the Proposed Acquisition.

They were, thus, directly involved in the making of the Proxy.

94. BJ's also had direct supervisory control over composition of the Proxy and the

information disclosed therein, as well as the information that was omitted and/or misrepresented

in the Proxy. BJ's, in fact, disseminated the Proxy and is, thus, directly responsible for materially

misleading shareholders because it permitted the materially misleading Proxy to be published to

shareholders.

95. In addition, as the Proxy sets forth at length, and as described herein, the

Individual Defendants and BJ's were each involved in negotiating, reviewing, and approving the

Proposed Acquisition. The Proxy purports to describe the various issues and information that

they reviewed and considered, descriptions of which had input from both the directors and BJ's.

96. By virtue of the foregoing, the Individual Defendants and BJ's have violated

section 20(a) of the Exchange Act.

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97. As set forth above, the Individual Defendants and BJ's had the ability to exercise

control over and did control a person or persons who have each violated section 14(a) and SEC

Rule 14a-9, by their acts and omissions as alleged herein. By virtue of their positions as

controlling persons, these defendants are liable pursuant to section 20(a) of the Exchange Act.

As a direct and proximate result of defendants' conduct, BJ's will be irreparably harmed.

COUNT III

Claim for Breach of Fiduciary Duties Against the Individual Defendants



99. The Individual Defendants have violated the fiduciary duties of care, loyalty,

good faith, and independence owed to the public shareholders of BJ's and have acted to put their

personal interests ahead of the interests of BJ's shareholders.

100. By the acts, transactions, and course of conduct alleged herein, defendants,

individually and acting as a part of a common plan, are attempting to unfairly deprive plaintiff

and other members of the Class of the true value inherent in and arising from BJ's.

101. The Individual Defendants have violated their fiduciary duties by entering BJ's

into the Proposed Acquisition without regard to the effect of the Proposed Acquisition on BJ's

shareholders.

102. As demonstrated by the allegations above, the Individual Defendants failed to

exercise the care required, and breached their duties of loyalty, good faith, and independence

owed to the shareholders of BJ's because, among other reasons:

(a) they failed to take steps to maximize the value of BJ's to its public

shareholders;

(b) they failed to properly value BJ's and its various assets and operations; and

(c) they ignored or did not protect against the numerous conflicts of interest

resulting from the directors' own interrelationships or connection with the Proposed Acquisition.

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103. Because the Individual Defendants dominate and control the business and

corporate affairs of BJ's, and are in possession of or have access to private corporate information

concerning BJ's assets, business, and future prospects, there exists an imbalance and disparity of

knowledge and economic power between them and the public shareholders of BJ's which makes

it inherently unfair for them to pursue and recommend any proposed transaction wherein they

will reap disproportionate benefits to the exclusion of maximizing shareholder value.

104. By reason of the foregoing acts, practices, and course of conduct, the Individual

Defendants have failed to exercise ordinary care and diligence in the exercise of their fiduciary

obligations toward plaintiff and the other members of the Class.

105. The Individual Defendants are engaging in self-dealing, are not acting in good

faith toward plaintiff and the other members of the Class, and have breached and are breaching

their fiduciary duties to the members of the Class.

106. As a result of the Individual Defendants' unlawful actions, plaintiff and the other

members of the Class will be irreparably harmed in that they will not receive their fair portion of

the value of BJ's assets and operations. Unless the Proposed Acquisition is enjoined by the

Court, the Individual Defendants will continue to breach their fiduciary duties owed to plaintiff

and the members of the Class, will not engage in arm's-length negotiations on the Proposed

Acquisition terms, and may consummate the Proposed Acquisition, all to the irreparable harm of

the members of the Class.

107. Plaintiff and the members of the Class have no adequate remedy at law. Only

through the exercise of this Court's equitable powers can plaintiff and the Class be fully

protected from the immediate and irreparable injury which defendants' actions threaten to inflict.

COUNT IV

Claim for Aiding and Abetting Breaches of Fiduciary Duty Against BJ's



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109. The Individual Defendants owed to plaintiff and the members of the Class certain

fiduciary duties as fully set out herein.

110. By committing the acts alleged herein, the Individual Defendants breached their

fiduciary duties owed to plaintiff and the members of the Class.

111. BJ's colluded in or aided and abetted the Individual Defendants' breaches of

fiduciary duties, and was an active and knowing participant in the Individual Defendants'

breaches of fiduciary duties owed to plaintiff and the members of the Class.

112. Plaintiff and the members of the Class shall be irreparably injured as a direct and

proximate result of the aforementioned acts.

COUNT V

Claim for Aiding and Abetting Breaches of Fiduciary Duty AgainstLGP, CVC, Beacon, and Merger Sub



114. The Individual Defendants owed to plaintiff and the members of the Class certain

fiduciary duties as fully set out herein.

115. By committing the acts alleged herein, the Individual Defendants breached their

fiduciary duties owed to plaintiff and the members of the Class.

116. Defendants LGP, CVC, Beacon, and Merger Sub colluded in or aided and abetted

the Individual Defendants' breaches of fiduciary duties, and were active and knowing

participants in the Individual Defendants' breaches of fiduciary duties owed to plaintiff and the

members of the Class.

117. Defendants LGP, CVC, Beacon, and Merger Sub participated in the breach of the

fiduciary duties by the Individual Defendants for the purpose of advancing their own interests.

Defendants LGP, CVC, Beacon, and Merger Sub obtained and will obtain both direct and

indirect benefits from colluding in or aiding and abetting the Individual Defendants' breaches.

Defendants LGP, CVC, Beacon, and Merger Sub will benefit, inter alia, from the acquisition of

the Company at an inadequate and unfair price if the Proposed Acquisition is consummated.

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118. Plaintiff and the members of the Class shall be irreparably injured as a direct and

proximate result of the aforementioned acts.

PRAYER FOR RELIEF

WHEREFORE, plaintiff demands injunctive relief, in his favor and in favor of the Class

and against defendants as follows:

A. Declaring that this action is properly maintainable as a class action;

B. Declaring and decreeing that the Merger Agreement was agreed to in breach of

the fiduciary duties of the Individual Defendants and is therefore unlawful and unenforceable;

C. Rescinding, to the extent already implemented, the Merger Agreement;

D. Enjoining defendants, their agents, counsel, employees, and all persons acting in

concert with them from consummating the Proposed Acquisition, unless and until the Company:

(i) adopts and implements a procedure or process reasonably designed to provide the best

possible value for shareholders; and (ii) amends the Proxy so as to provide BJ's shareholders

with all material information concerning the Proposed Acquisition as required by the Exchange

Act;

E. Directing the Individual Defendants to exercise their fiduciary duties to

commence a sale process that is reasonably designed to secure the best possible consideration for

BJ's and obtain a transaction which is in the best interests of BJ's shareholders;

F. Imposition of a constructive trust, in favor of plaintiff and members of the Class,

upon any benefits improperly received by defendants as a result of their wrongful conduct;

G. Awarding plaintiff the costs and disbursements of this action, including

reasonable attorneys' and experts' fees; and

H. Granting such other and further equitable relief as this Court may deem just and

proper.

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Dated: July27, 2011 PARTRIDGE, ANKNER & HORSTMANN, LLPTERENCE K. ANKNER

/s/ Terence K Ankner TERENCE K. ANKNERBBO No. 556377The Berkeley Building200 Berkeley Street, 16th FloorBoston, MA 02116Telephone: (617) 859-9999Facsimile: (617) 859-9998

ROBBINS UMEDA LLPBRIAN J. ROBBINSSTEPHEN J. ODDOARSHAN AMIRIJUSTIN D. RIEGER600 B Street, Suite 1900San Diego, CA 92101Telephone: (619) 525-3990Facsimile • (619) 525-3991

CHAPIN FITZGERALD SULLIVAN& BOTTINI LLP

FRANK A. BOTTINI JR.550 West C. Street, Suite 2000San Diego, CA 92101Telephone: (619) 241-4810Facsimile . (619) 955-5318

Attorneys for Plaintiff

634107

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CERTIFICATE OF SERVICE

I hereby certify that this document was filed through the ECF system on July 27, 2011.

/s/ Terence K Ankner Terence K. Ankner, Esq.

634107

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