As filed with the Securities and Exchange Commission on October 29, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
The Bombay Company, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation or organization)
75-1475223
(I.R.S. Employer
Identification Number)
The Bombay Company, Inc.
550 Bailey Avenue, Suite 700
Fort Worth, Texas
(Address of principal executive offices)
76107
(Zip Code)
THE BOMBAY COMPANY, INC.
1996 LONG-TERM INCENTIVE STOCK PLAN
(Full title of the Plan)
Michael J. Veitenheimer, Esq.
Vice President, Secretary, and General Counsel
The Bombay Company, Inc.
550 Bailey Avenue, Suite 700
Fort Worth, Texas 76107
(817) 347-8200
(Name, Address, including zip code and telephone
number, including area code, of agent of service)
___________________________
COPIES TO:
James S. Ryan, III
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLAN:
From time to time after this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
Title of
Securities to be
Registered
Common Stock
$1.00 par value
Amount to be
Registered
1,874,971 Shares
Proposed Maximum
Offering Price Per
Share(1)
$7.21875
Proposed Maximum
Aggregate Offering
Price (1)
$13,534,946.90
Amount of
Registration Fee
$4,101.50
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), the offering price and registration
fee are computed on the basis of the average of the high and low prices of
the Common Stock, as reported by the New York Stock
Exchange, on October 24, 1997.
Pursuant to General Instruction E of Form S-8, this Registration Statement
incorporates by reference the contents of the Registrant's Registration
Statements No. 33-40736, dated May 21, 1991, and No. 33-55306, dated December
2, 1992, on Form S-8.
PROSPECTUS
1,874,971 Shares
THE BOMBAY COMPANY, INC.
Common Stock
This Prospectus has been prepared by The Bombay Company, Inc., a Delaware
corporation (the "Company"), for use upon resale by certain officers and
directors of the Company (the "Selling Stockholders") of up to 1,874,971
shares (the "Shares") of Common Stock, par value $1.00 per share (the
"Common Stock"), of the Company. The Selling Stockholders have
acquired and/or may in the future acquire Shares from the Company pursuant
to the exercise of outstanding options heretofore granted and options to be
thereafter granted to the Selling Stockholders pursuant to the provisions of
the Company's 1996 Long-Term Incentive Stock Plan the "Plan") and/or
pursuant to grants of restricted stock pursuant to the Plan.
The Shares may be sold from time to time by the Selling Stockholder or by
permitted transferees. Such sales may be made on one or more exchanges,
including the New York Stock Exchange (the "NYSE"), or in the over the
counter market, or in negotiated transactions, in each case at prices and
at terms then prevailing or at prices related to the then current market
price or at negotiated prices and terms. Upon any sale of the Shares
offered hereby, the Selling Stockholder or permitted transferees and
participating agents, brokers, dealers, and marketmakers may be deemed to
be underwriters as that term is defined in the Securities Act of 1933, as
amended (the "Securities Act"), and commissions or discounts or any profit
realized on the resale of such securities may be deemed to be underwriting
commissions or discounts under the
Securities Act. See "Plan of Distribution."
The Common Stock is listed for trading on the NYSE under the symbol "BBA." On
October 24, 1997, the closing price of the Common Stock on the NYSE was
$7.00. The Company will not receive any of the proceeds from the sales by
Selling Stockholders.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is October 29, 1997.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the regional
offices of the Commission at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and at 7 World Trade Center, Suite 1300,
New York, New York 10048. Copies of such materials can also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C., 20549, at prescribed rates. The Commission
maintains a Web site at http://www.sec.gov that contains reports, proxy and
information statements, and other information regarding registrants that
file electronically with the Commission. The Common Stock is listed on the
NYSE. Reports, proxy statements and other information concerning the
Company can also be inspected at the offices of the NYSE at 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form S-8
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the offer and sale of
the Common Stock to be issued pursuant to the Plan. As permitted by the
rules and regulations of the Commission, this Prospectus omits certain of
the information contained in the Registration Statement. Copies of the
Registration Statement are available from the Public Reference Section of
the Commission at prescribed rates. Statements contained herein concerning
the provisions of documents filed with the Registration Statement are
necessarily summaries of such documents, and each such statement is
qualified in its entirety by reference to the copy of the applicable
document filed with the Commission.
The Company's principal executive offices are located at 550 Bailey Avenue,
Suite 700, Fort Worth, Texas 76107, and the Company's telephone number at
such address is (817) 347-8200.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K for the year ended February 1, 1997 ("Annual
Report");
(ii) All other reports filed with the Commission pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of
the fiscal year covered by the Annual Report;
(iii) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed May 17, 1993; and
(iv) The description of certain rights of certain holders of the Company's
Common Stock contained in the Company's Registration Statement on Form 8-A
filed June 12, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of Common Stock to be made hereunder shall
be deemed to be incorporated herein by reference and made a part hereof from
the date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for all purposes of this
Prospectus to the extent that a statement contained herein or therein or in
any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Written or telephonic requests for copies should be directed
to the Company's principal office: The Bombay Company, Inc., 550 Bailey
Avenue, Suite 700, Fort Worth, Texas 76107, Attention Michael J.
Veitenheimer, Vice President, Secretary, and General Counsel
(telephone: (817) 347-8200).
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common Stock
offered hereby.
<TABLE>
SELLING STOCKHOLDERS
The following officers and directors of the Company are eligible to receive
shares of the Company's Common Stock upon exercise of options granted under
the Plan:
SELLING STOCKHOLDERS
<CAPTION>
Common
Stock
Offered For Ownership
Ownership Selling of Percentage
of Common Sharesholders' Common of
Name and Office Stock Prior Account Stock Common
of Beneficial Owner to Upon After Stock After
Offering(1) Exercise(2) Offering Offering
<S> <C> <C> <C> <C>
Robert S. Jackson 58,812 0 58,812 *
President, Chief
Executive Officer,
and Director
James E. Herlihy 186,702 396,959 583,661 1.5%
Executive Vice
President and
Chief Financial
Officer (3)
Michael J.
Veitenheimer 129,197 33,000 162,197 *
Vice President,
General Counsel,
and Corporate
Secretary
James Michael Smith 0 52,000 52,000 *
Vice President,
Human Resources
Elaine D. Crowley 82,422 27,000 109,422 *
Vice President,
Finance,
and Treasurer
Gerald A. Cook 12,065 185,000 197,065 *
Senior Vice President,
Store Operations
Brent A. Magnuson 16,775 185,000 201,775 *
Vice President,
Merchandise Management
Daniel L. Lawrence 115,389 27,000 142,389 *
Senior Vice President,
Multinational Sourcing
David Gruehn 17,258 25,000 42,258 *
Vice President,
Information Systems
</TABLE>
[FN]
* Less than 1%.
(1) Includes shares to be acquired upon exercise of options granted under
the Company's 1986 Stock Option Plan, a predecessor to the Plan, some of
which are not exercisable within 60 days of the date of this Prospectus.
(2) Total amount of shares purchasable pursuant to the Plan, including
shares purchasable pursuant to options, some of which are not exercisable
within 60 days of the date of this Prospectus.
(3) Departed the Company effective October 3, 1997.
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by the Selling
Stockholder or permitted transferees. The Shares may be disposed of from
time to time in one or more transactions through any one or more of the
following: (i) to purchasers directly, (ii) in ordinary brokerage
transactions and transactions in which the broker solicits purchaser, (iii)
through underwriters or dealers who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling
Stockholder or permitted transferees and/or from the purchasers of the Shares
for whom they may act as agent, (iv) through the writing of options on the
Shares, (v) the pledge of the Shares as security for any loan or obligation,
including pledges to brokers or dealers who may, from time to time,
themselves effect distributions of the Shares or interests therein, (vi)
purchases by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this Prospectus, (vii) a block trade
in which the broker or dealer so engaged will attempt to sell the Shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction, and (viii) an exchange distribution in accordance
with the rules of such exchange, including the NYSE, or transactions in the
over the counter market. Such sales may be made at prices and at terms then
prevailing or at prices related to the then current market price or at
negotiated prices and terms. In effecting sales, brokers or dealers may
arrange for other brokers or dealers to participate. The Selling Stockholder
or permitted transferees, and any underwriters, brokers, dealers
or agents that participate in the distribution of the Shares, may be deemed
to be "underwriters" within the meaning of the Securities Act, and any profit
on the sale of the Shares by them and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents may
be deemed to be underwriting commissions or discounts under the Securities Act.
The Company will pay all of the expenses incident to the offering and sale of
the Shares to the public other than underwriting discounts or commissions,
brokers' fees and the fees and expenses of
any counsel to the Selling Stockholder related thereto.
In the event of a material change in the plan of distribution disclosed in
this Prospectus, the Selling Stockholder will not be able to effect
transactions in the Shares pursuant to this Prospectus until such time as a
post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
LEGAL MATTERS
Certain legal matters in connection with the validity of the Common Stock
offered hereby have been passed upon for the Company by Jackson Walker
L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements included in the Annual Report to
Shareholders of The Bombay Company, Inc., which is incorporated by reference
into the Company's Annual Report on Form 10-K, and the financial statement
schedule appearing in the Company's Annual Report on Form 10-K for the fiscal
year ended February 1, 1997, are incorporated by reference herein in reliance
upon the reports of Price Waterhouse LLP, independent accountants, given upon
the authority of such firm as experts in accounting and auditing.
INDEMNIFICATION
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
corporation to indemnify its directors and officers or former directors or
officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers. Such law provides
further that the indemnification permitted thereunder shall not be deemed
exclusive of any other rights to which the directors and officers may be
entitled under a corporation's certificate of incorporation, bylaws, any
agreement or otherwise.
The Restated Certificate of Incorporation of the Company provides that a
director of the Company shall not be personally liable to the Company 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 Company 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 DGCL, or (iv) for any transaction from
which the director derived an improper personal benefit.
The Bylaws of the Company provide that the Company will reimburse any
director or officer of the Company, whether or not then in office (and his
heirs and administrators), to the full extent permitted by Section 145 of the
DGCL for all reasonable expenses incurred by or imposed upon him in
connection with, or resulting from any action, suit, or proceeding to which
he may be made a party by reason of his being or having been a director or
officer of the Company or any of its subsidiaries, or of any other
corporation at the request of the Company. The Company also may make such
reimbursement in the event of a settlement of any such action, suit or
proceeding prior to final adjudication when such settlement appears to be in
the interest of the Company. This right of reimbursement is not to be
exclusive of other rights to which the director or officer may be entitled as
a matter of law.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
No dealer, salesman or other person has been
authorized to give any information or to make
any representation not contained in this
Prospectus in connection with the offering
made hereby. If given or made, such
information or representation must not be
relied upon as having been authorized by the
Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall
under any circumstances create any
implication that the information contained
herein is correct as of any time subsequent to
the date hereof. This Prospectus does not
constitute an offer to sell or a solicitation of
an offer to buy any securities in any
jurisdiction to any person to whom it would
be unlawful to make such an offer or
solicitation in such jurisdiction.
1,874,971 SHARES
THE BOMBAY COMPANY,
INC.
COMMON STOCK
PROSPECTUS
October 29, 1997
TABLE OF CONTENTS
Available Information
Incorporation of Certain Documents
by Reference
Use of Proceeds
Selling Shareholders
Plan of Distribution
Legal Matters
Experts
Indemnification
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K for the year ended February 1, 1997
("Annual Report");
(ii) All other reports filed with the Commission pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of
the fiscal year covered by the Annual Report;
(iii) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed May 17, 1993; and
(iv) The description of certain rights of certain holders of the Company's
Common Stock contained in the Company's Registration Statement on Form 8-A
filed June 12, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 145(b) of the DGCL states that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 145(d) of the DGCL states that any indemnification under subsections
(a) and (b) of Section 145 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in subsections (a) and (b). Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(3) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation as authorized in Section
145. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the
board of directors deems appropriate.
Section 145(f) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of
Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer, employee or agent, and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Certificate of Incorporation
The Restated Certificate of Incorporation of the Company provides that a
director of the Company shall not be personally liable to the Company 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 Company 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 DGCL, or (iv) for any transaction from
which the director derived an improper personal benefit.
Bylaws
The Bylaws of the Company provide that the Company will reimburse any
director or officer of the Company, whether or not then in office (and his
heirs and administrators), to the full extent permitted by Section 145 of the
DGCL for all reasonable expenses incurred by or imposed upon him
in connection with, or resulting from any action, suit, or proceeding to
which he may be made a party by reason of his being or having been a director
or officer of the Company or any of its subsidiaries, or of any other
corporation at the request of the Company. The Company also may make such
reimbursement in the event of a settlement of any such action, suit or
proceeding prior to final adjudication when such settlement appears to be in
the interest of the Company. This right of reimbursement is not to be
exclusive of other rights to which the director or officer may be entitled as
a matter of law.
Insurance
The Company intends to maintain liability insurance for the benefit of its
directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers or
controlling persons of the Company pursuant to the foregoing provisions, the
Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, as amended, and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of all exhibits filed as a part of this Registration
Statement on Form S-8, including those incorporated herein by reference.
Exhibit No. Description of Exhibit
4.1 Restated Certificate of Incorporation.(1)
4.2 Bylaws (Restated--Effective May 21, 1997).(2)
4.3 Form of certificate evidencing ownership of the Common Stock
of The Bombay Company, Inc.(2)
5.1 Opinion of Jackson Walker L.L.P.(2)
23.1 Consent of Price Waterhouse LLP(2)
23.2 Consent of Jackson Walker L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page of this
Registration Statement)
99 The Bombay Company, Inc. 1996 Long-Term Incentive Stock Plan.(2)
(1) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the year ended July 4, 1993. Such exhibit is incorporated herein by
reference.
(2) Filed herewith.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act), that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
POWER OF ATTORNEY
Each person whose signature appears below authorizes Michael J. Veitenheimer
to execute in the name of each such person who is then an officer or director
of the Registrant, and to file any amendments to this Registration Statement
necessary or advisable to enable the Registrant to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in respect thereof, in connection with
the registration of the securities that are the subject of this Registration
Statement, which amendments may make such changes to such Registration
Statement as such attorney may deem appropriate.
SIGNATURE PAGE
Pursuant to the requirements of the Securities Act of 1933, as amended, The
Bombay Company, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fort Worth, State of Texas, on
October 29, 1997.
THE BOMBAY COMPANY, INC.
By: /s/ Robert S. Jackson
Robert S. Jackson
President and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 29, 1997.
Signatures Title
/s/ ROBERT S. JACKSON President, Chief Executive
Robert S. Jackson Officer and Director
(Principal Executive Officer)
/s/ ELAINE D. CROWLEY Vice President, Finance and
Elaine D. Crowley Treasurer
(Principal Financial and Accounting
Officer)
________________________ Chairman of the Board
Clayton E. Niles
/s/ GLENN E. HEMMERLE Director
Glenn E. Hemmerle
/s/ CARSON R. THOMPSON Director
Carson R. Thompson
_________________________ Director
Edmund H. Damon
/s/ ROBERT E. RUNICE Director
Robert E. Runice
________________________ Director
A. Roy Megarry
/s/ SHIRLEY YOUNG Director
Shirley Young
/s/ BARBARA BASS Director
Barbara Bass
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
4.1 Restated Certificate of Incorporation.(1)
4.2 Bylaws (Restated--Effective May 21, 1997).(2)
4.3 Form of certificate evidencing ownership of the Common Stock
of The Bombay Company, Inc.(2)
5.1 Opinion of Jackson Walker L.L.P.(2)
23.1 Consent of Price Waterhouse LLP(2)
23.2 Consent of Jackson Walker L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page of this
Registration Statement)
99 The Bombay Company, Inc. 1996 Long-Term Incentive Stock Plan.(2)
(1) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the year ended July 4, 1993. Such exhibit is incorporated herein by
reference.
(2) Filed herewith.
THE BOMBAY COMPANY, INC.
BYLAWS
(Restated - Effective May 21, 1997)
ARTICLE I
OFFICES.
SECTION 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be located in the City of
Dover, County of Kent, State of Delaware, and the name of the resident
agent in charge thereof shall be The Prentice-Hall Corporation System,
Inc.
SECTION 2. Other Offices. The principal office of the Corporation
and such other offices as may be deemed appropriate shall be at such
place or places as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS.
SECTION 1. Place of Meeting. All meetings of the stockholders for
the election of directors shall be held at such place within or
without the State of Delaware as the Board of Directors may designate,
provided that at least ten (10) days' notice must be given to the
stockholders entitled to vote thereat of the place so fixed.
Meetings of stockholders for any other purpose may be held at such
place and time as shall be stated in the notice of the meeting.
SECTION 2. Annual Meeting. The Annual Meeting of Shareholders
shall be held annually on such a date and at such time as shall be
designated from time to time by the Board of Directors and stated
in the Notice of Meeting in accordance with the General Corporation
Laws of the State of Delaware, at which meeting the shareholders
shall elect directors by plurality vote and shall transact such
other business as may properly be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute
or the Certificate of Incorporation, may be called by the directors
by resolution adopted by a vote of the majority.
SECTION 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the time and place thereof,
and, if a special meeting, the purpose or purposes in general terms
for which the meeting is called, shall not be less than ten (10)
days before such meeting be served upon or mailed to each stockholder
entitled to vote thereat, at his address as it appears upon the
books of the Corporation, or, if such stockholder shall have filed
with the Secretary of the Corporation a written request that notices
intended for him be mailed to some other address, then to the address
designated in such request.
SECTION 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the
shares of the capital stock of the Corporation issued and outstanding
and entitled to vote thereat shall be requisite and shall constitute
a quorum. If, however, such majority shall not be represented at any
meeting of the stockholders regularly called, the holders of a
majority of the shares present in person or by proxy and entitled to
vote thereat shall have power to adjourn the meeting to another time,
or to another time and place, without notice other than announcement
of adjournment at the meeting, and there may be successive
adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be
represented. At such adjourned meeting at which the requisite amount
of shares entitled to vote thereat shall be represented, any business
may be transacted which might have been transacted at the meeting as
originally notified.
SECTION 6. Votes. At each meeting of stockholders every
stockholder shall have one vote for each share of Common Stock
entitled to vote and the vote, if any, which was fixed pursuant to
the Certificate of Incorporation for each share of Preferred Stock
which is registered in the stockholder's name on the books of the
Corporation on the date on which the transfer books were closed, if
closed, or on the date set by the Board of Directors for the
determination of stockholders entitled to vote at such meeting. At
each such meeting, every stockholder shall be entitled to vote in
person, or by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three (3) years
prior to the meeting in question, unless said instrument provides
for a longer period during which it is to remain in force.
At all meetings of the stockholders, a quorum being present, all
matters shall be decided by a majority vote of the shares of stock
entitled to vote held by stockholders present in person or by proxy,
except as otherwise required by the Certificate of Incorporation or
the laws of the State of Delaware. Unless so directed by the
chairman of the meeting, or required by the laws of the State of
Delaware, the vote thereat on any question need not be by ballot.
On a vote by ballot, each ballot shall be signed by the stockholder
voting, or in his name by his proxy, if there be such proxy, and
shall state the number of shares voted by him and the number of votes
to which each share is entitled. On a vote by ballot, the chairman
shall appoint two inspectors of election, who shall first take and
subscribe an oath or affirmation faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to
the best of their ability and who shall take charge of the polls and
after the balloting shall make a certificate of the result of the
vote taken; but no director or candidate for the office of director
shall be appointed as such inspector.
SECTION 7. Stock List. At least ten (10) days before every
election of directors, a complete list of stockholders entitled to
vote at such election, arranged in alphabetical order, with the
residence of each and the number of voting shares held by each shall
be prepared by the Secretary. Such list shall be open at the place
where the election is to be held for said ten (10) days, to the
examination of any stockholder entitled to vote at that election and
shall be produced and kept at the time and place of election during
the whole time thereof, and subject to the inspection of any
stockholder who may be present.
ARTICLE III
DIRECTORS
SECTION 1. Number. The business and property of the Corporation
shall be conducted and managed by a Board consisting of such number
of directors, but not less than three (3) nor more than nine (9), as
may be fixed from time to time by resolution adopted by the Board or
as set forth in the Articles of Incorporation. Directors need not
be stockholders.
SECTION 2. Term of Office. Except as otherwise provided by law or
the Certificate of Incorporation, each director shall hold office
until the annual meeting of stockholders held in the third year
following the year of such director's election, and until such
director's successor is duly elected and qualified or until such
director's earlier death or resignation. Directors shall retire from
the Board at the Board meeting held in conjunction with the annual
stockholders meeting following such director's 70th birthday.
SECTION 3. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of
Directors.
SECTION 4. Vacancies. If any vacancy shall occur among the
directors, or if the number of directors shall at any time be
increased, the directors in office, although less than a quorum, by
a majority vote may fill the vacancies or newly created directorships.
When one or more directors shall resign from the Board of Directors,
effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to
fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each
director so chosen shall hold office as herein provided in the
filling of other vacancies.
SECTION 5. Meeting. Meetings of the Board of Directors shall be
held at such place within or without the State of Delaware as may
from time to time be fixed by resolution of the Board of Directors
or by the Chairman of the Board, or by the President or as may be
specified in the notice or waiver of notice of any meeting. Meetings
may be held at any time upon the call of the Chairman of the Board,
the President or the Secretary or any two (2) of the directors in off
ice by oral, telegraphic, or written notice, duly served or sent or
mailed to each director not less than one (1) day before such meeting.
Meetings may be held at any time and place without notice if all the
directors are present, or if those not present shall in writing or by
telegram or cable waive notice thereof. A regular meeting of the
Board of Directors may be held without notice immediately following
the annual meeting of stockholders at the place where such annual
meeting is held. Regular meetings of the Board may also be held
without notice at such time and place as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 6. Quorum. One-third, but not less than two (2), of the
directors shall constitute a quorum for the transaction of business.
If at any meeting of the Board of Directors there shall be less than
a quorum present, a majority of those present may adjourn the meeting
from time to time without notice other than announcement of the
adjournment at the meeting, and at such adjourned meeting at which a
quorum is present any business may be transacted which might have
been transacted at the meeting as originally notified.
SECTION 7. Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors, a
fixed sum for attendance at each meeting of the Board of Directors
and/or a stated fee as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of the Executive Committee
and/or of other committees may be allowed like compensation and
reimbursement of expenses for attending committee meetings.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES.
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an
Executive Committee of two (2) or more members, to serve during the
pleasure of the Board of Directors, to consist of such directors as
the Board of Directors may from time to time designate. The Chairman
of the Executive Committee shall be designated by the Board of
Directors.
SECTION 2. Procedure. The Executive Committee, by a vote of a
majority of its members, shall fix its own times and places of
meeting, shall determine the number of its members constituting a
quorum for the transaction of business, and shall prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
SECTION 3. Powers. The Executive Committee shall have the
responsibility to act for the Board of Directors, within the
specified limits of its authority. The Executive Committee shall
formulate an Executive Committee Charter, to be approved by the Board
of Directors, setting forth the Committee's duties and
responsibilities and establishing the limits of its authority.
SECTION 4. Minutes. The Executive Committee shall keep regular
minutes of its proceedings and all action by the Executive Committee
shall be reported to the Board of Directors at its next meeting.
Such action shall be subject to review by the Board of Directors,
provided that no rights of third parties shall be affected by such
review.
SECTION 5. Other Committees. From time to time the Board of
Directors, by the affirmative vote of a majority of the whole Board
of Directors, may appoint other committees for any purpose or
purposes, and such committees shall have such powers as shall be
conferred by the resolution of appointment, and as shall be
permitted by law.
ARTICLE V
OFFICERS.
SECTION 1. Officers. The Board of Directors shall elect, as
officers, a President, one or more Vice Presidents (the number
thereof to be determined by the Board of Directors), a Treasurer
and a Secretary, and in their discretion one or more Assistant
Secretaries, and Assistant Treasurers. Such officers shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders, and each shall hold office until
the corresponding meeting of the Board of Directors in the next year
and until his successor shall have been duly elected and qualified,
or until he shall have died or resigned or shall have been removed
in the manner provided herein. The powers and duties of two or more
offices may be exercised and performed by the same person, except
the offices of President and Secretary.
SECTION 2. Vacancies. Any vacancy in any office may be filled for
the unexpired portion of the term by the Board of Directors at any
regular or special meeting.
SECTION 3. President. The President shall be either the Chief
Executive Officer or the Chief Operating Officer of the Corporation.
Subject to the direction of the Board of Directors, he shall have
and exercise direct charge of and general supervision over the
business and affairs of the Corporation and shall perform such other
duties as may be assigned to him from time to time by the Board of
Directors.
SECTION 4. Vice Presidents. The Vice Presidents shall, in the
order of their seniority or in such order as may be specified by the
Board of Directors, have and perform all the powers and duties of the
President, in his absence or disability, and shall in addition have
and exercise such powers and shall perform such duties as from time
to time may be conferred upon or assigned to them by the Board of
Directors or as may be delegated to them by the Chairman of the
Board or the President.
SECTION 5. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of
the Corporation, and shall deposit, or cause to be deposited, in the
name of the Corporation, all monies or other valuable effects in such
banks, trust companies or other depositaries as shall, from time to
time, be selected by the Board of Directors; he may endorse for
collection on behalf of the Corporation, checks, notes and other
obligations; he may sign receipts and vouchers for payments made to
the Corporation; singly or jointly with another person as the Board
of Directors may authorize, he may sign checks of the Corporation
and pay out and dispose of the proceeds under the direction of
the Board of Directors; he shall cause to be kept correct books of
account of all the business and transactions of the Corporation,
shall see that adequate audits thereof are currently and regularly
made, and shall examine and certify the accounts of the Corporation;
he shall render to the Board of Directors, the Executive Committee,
the Chairman of the Board or to the President, whenever requested,
an account of the financial condition of the Corporation; he may sign
with the President or a Vice President, certificates of stock of the
Corporation; and, in general, shall perform all the duties incident
to the office of a treasurer of a corporation, and such other duties
as from time to time may be assigned to him by the Board of Directors.
SECTION 6. Assistant Treasurers. The Assistant Treasurers in order
of their seniority shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties as the President or
the Board of Directors shall prescribe.
SECTION 7. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books
provided for the purpose; he shall see that all notices are duly
given in accordance with the provisions of law and these Bylaws; he
shall be custodian of the records and of the corporate seal or seals
of the Corporation; he shall see that the corporate seal is affixed
to all documents, the execution of which, on behalf of the
Corporation, under its seal, is duly authorized and when the seal is
so affixed he may attest the same; he may sign, with the President or
a Vice President, certificates of stock of the Corporation; and, in
general, he shall perform all duties incident to the office of a
secretary of a corporation, and such other duties as from time to
time may be assigned to him by the Board of Directors.
SECTION 8. Assistant Secretaries. The Assistant Secretaries in
order of their seniority shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as the President or
the Board of Directors shall prescribe.
SECTION 9. Subordinate Officers. The Board of Directors may
appoint such subordinate officers as it may deem desirable. Each
such officer shall hold office for such period, have such authority
and perform such duties as the Board of Directors may prescribe.
The Board of Directors may, from time to time, authorize any officer
to appoint and remove subordinate officers and to prescribe the
powers and duties thereof.
SECTION 10. Compensation. The Board of Directors shall have power
to fix the compensation of all officers of the Corporation. It may
authorize any officer, upon whom the power of appointing subordinate
officers may have been conferred, to fix the compensation of such
subordinate officers.
SECTION 11. Removal. Any officer of the Corporation may be
removed, with or without cause, by a majority vote of the Board of
Directors at a meeting called for that purpose.
SECTION 12. Bonds. The Board of Directors may require any officer
of the Corporation to give a bond to the Corporation, conditional
upon the faithful performance of his duties, with one or more
sureties and in such amount as may be satisfactory to the Board of
Directors.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of
each stockholder of the Corporation shall be evidenced by a
certificate or certificates for shares of stock in such form as may
be prescribed from time to time by law and by the Board of Directors.
The certificates of stock of each class and series now authorized or
which may hereafter be authorized by the Certificate of Incorporation
shall be consecutively numbered and signed by either the President or
a Vice President together either with the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the
Corporation, and may be countersigned and registered in such manner
as the Board of Directors may prescribe, and shall bear the corporate
seal or a printed or engraved facsimile thereof. Where any such
certificate is signed by a transfer agent or transfer clerk and by a
registrar, the signatures of any such President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary upon
such certificate may be facsimiles engraved or printed. In case any
officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been placed upon, such certificate
or certificates shall have ceased to be such, whether because of
death, resignation or otherwise, before such certificate or
certificates shall have been issued and delivered, such certificate
or certificates may nevertheless be issued and delivered with the
same effect as if such officer or officers had not ceased to be such
at the date of its issue and delivery.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by
the holder thereof in person or by his attorney lawfully constituted,
upon surrender for cancellation of certificates for the same number
of shares, with an assignment and power of transfer endorsed thereon
or attached thereto, duly executed, with such proof or guaranty of
the authenticity of the signature as the Corporation or its agents
may reasonably require. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on
the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise expressly provided by law.
SECTION 3. Closing of Transfer Books and Record Dates. The Board
of Directors may in its discretion prescribe, in advance, a record
date not exceeding sixty (60) nor less than ten (10) days prior to
the date of any meeting of the stockholders or prior to the last day
on which the consent or dissent of stockholders may be effectively
expressed for any purpose without a meeting, during which no transfer
of stock on the books of the Corporation may be made; or in lieu of
prohibiting the transfer of stock, may fix, in advance, a record date
not more than sixty (60) nor less than ten (10) days prior to the
date of any meeting of stockholders or prior to the last day on which
the consent or dissent of stockholders may be effectively expressed
for any purpose without a meeting, as the time as of which
stockholders entitled to notice of and to vote at such a meeting or
whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined; and all persons who
were holders of record of voting stock at such time and no others
shall be entitled to notice of and to vote at such meeting or to
express their consent or dissent, as the case may be, notwithstanding
any transfer of any stock on the books of the Corporation after any
record date fixed as aforesaid. The Board of Directors may also, in
its discretion, fix in advance a date not exceeding sixty (60) days
preceding the date fixed for the payment of any dividend or the
making of any distribution, or for the delivery of evidence of
rights, or evidences of interests arising out of any issuance, change,
conversion or exchange of capital stock, as a record date for the
determination of the stockholders entitled to receive or participate
in any such dividend, distribution, rights or interests,
notwithstanding any transfer of any stock on the books of the
Corporation after any record date fixed as aforesaid, or, at its
option, in lieu of so fixing a record date, may prescribe in advance
a period not exceeding sixty (60) days prior to the date for such
payment, distribution or delivery during which no transfer of stock
on the books of the Corporation may be made.
SECTION 4. Lost or Destroyed Certificates. In case of the loss or
destruction of any outstanding certificate of stock, a new
certificate may be issued upon the following conditions:
The owner of said certificate shall file with the Secretary of the
Corporation an affidavit giving the facts in relation to the
ownership, and in relation to the loss or destruction of said
certificate, stating its number and the number of shares represented
thereby; such affidavit to be in such form and contain such
statements as shall satisfy the President and Secretary that said
certificate has been accidentally destroyed or lost, and that a new
certificate ought to be issued in lieu thereof. Upon being so
notified, the President and Secretary shall require such owner to
file with the Secretary a bond in such penal sum and in such form as
they may deem advisable, and with a surety or sureties approved by
them, to indemnify and save harmless the Corporation from any claim,
loss, damage or liability which may be occasioned by the issuance of
a new certificate in lieu thereof. Upon such bond being so filed, a
new certificate for the same number of shares shall be issued to the
owner of the certificate so lost or destroyed; and the transfer agent
and registrar of stock, if any, shall countersign and register such
new certificate upon receipt of a written order signed by the said
President and Secretary, and thereupon the Corporation will save
harmless said transfer agent and registrar in the premises. Any
Vice President may act hereunder in the stead of the President, and
an Assistant Secretary in the stead of the Secretary. In case of the
surrender of the original certificate, in lieu of which a new
certificate has been issued, or the surrender of such new
certificate, for cancellation, the bond of indemnity given as a
condition of the issue of such new certificate may be surrendered.
A new certificate may be issued without requiring any bond when in
the judgment of the Board of Directors it is proper to do so.
ARTICLE VII
CHECKS, NOTES, ETC.
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts
on the Corporation's bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed by such
officer or officers, agent or agents, as shall be thereunto
authorized from time to time by the Board of Directors.
SECTION 2. Execution of Contracts, Assignments, etc. All
contracts, agreements, endorsements, assignments, transfers, stock
powers, or other instruments (except as provided in Sections 1 and 3
of this Article VII) shall be signed by the President or any Vice
President and by the Secretary or any Assistant Secretary or the
Treasurer or any Assistant Treasurer, or by such other officer or
officers, agent or agents, as shall be thereunto authorized from
time to time.
SECTION 3. Execution of Proxies. The President or a Vice President
of the Corporation may authorize from time to time the signature and
issuance of proxies to vote upon shares of stock of other companies
standing in the name of the Corporation. All such proxies shall be
signed in the name of the Corporation by the President or a Vice
President and by the Secretary or an Assistant Secretary.
ARTICLE VIII
WAIVERS AND CONSENTS
SECTION 1. Waivers. Whenever under the provisions of any law or
under the provisions of the Certificate of Incorporation of the
Corporation or these Bylaws, the Corporation, or the Board of
Directors or any committee thereof, is authorized to take any action
after notice to stockholders or the directors or the members of such
committee, or after the lapse of a prescribed period of time, such
action may be taken without notice and without the lapse of any
period of time if, at any time before or after such action be
completed, such requirements be waived in writing by the person or
persons entitled to said notice or entitled to participate in this
action to be taken, or, in the case of a stockholder, by his
attorney thereunto authorized.
SECTION 2. Consents. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee of the
Board of Directors may be taken without a meeting, if prior to such
action a written consent thereto is signed by all members of the
Board of Directors or of such committee as the case may be, and such
written consent is filed with the minutes of proceedings of the Board
of Directors or of such committee.
ARTICLE IX
DIVIDENDS AND RESERVE FUNDS.
SECTION 1. Dividends. Except as otherwise provided by law or by
the Certificate of Incorporation, the Board of Directors may declare
dividends out of the surplus of the Corporation at such times and in
such amounts as it may from time to time designate.
SECTION 2. Reserve Funds. Before crediting net profits to the
surplus in any year, there may be set aside out of the net profits
of the Corporation for that year such sum or sums as the Board of
Directors from time to time in its absolute discretion may deem
proper as a reserve fund or funds to meet contingencies or for
equalizing dividends or for repairing or maintaining any property
of the Corporation or for such other purpose as the Board of
Directors shall deem conducive to the interests of the Corporation.
ARTICLE X
INSPECTION OF BOOKS.
The Board of Directors shall determine from time to time whether, and
if allowed when and under what conditions and regulations, the
accounts and books of the Corporation (except such as may by statute
be specifically open to inspection) or any of them shall be open to
the inspection of the stockholders; and the stockholders' rights in
this respect are and shall be restricted and limited accordingly.
ARTICLE XI
FISCAL YEAR.
The fiscal year of the Corporation shall end on the Saturday closest
to the end of January of each year unless another date shall be fixed
by resolution of the Board of Directors. After such date is fixed,
it may be changed for future fiscal years at any time or from time to
time by further resolution of the Board of Directors.
ARTICLE XII
SEAL.
The corporate seal shall be circular in form and shall contain the
name of the Corporation, the State of incorporation, and the words
"Corporate Seal".
ARTICLE XIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation agrees to hold harmless and indemnify each director
and officer, whether or not then in office (and his heirs and
administrators), to the full extent permitted by Section 145 of the
General Corporation Law of the State of Delaware or by any amendment
thereof or other statutory provision authorizing or permitting such
indemnification adopted hereafter, for all liability, including
reasonable expenses, incurred by, imposed upon him in connection
with, or resulting from any action, suit or proceeding to which he
may be made a party by reason of his being or having been a director
or officer of the Corporation or any of its subsidiaries, or of any
other corporation at the request of the Corporation. The foregoing
right of reimbursement shall not be exclusive of other rights to
which such director or officer may be entitled as a matter of law
or contract.
ARTICLE XIV
AMENDMENTS.
SECTION 1. By Stockholders. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be amended by the
affirmative vote of the holders of 66 2/3% or more of the combined
voting power of the outstanding voting stock, voting together as a
single class and cast at any annual or special meeting of the
stockholders if notice of the proposed amendment shall have been
contained in the notice of the meeting.
SECTION 2. By Directors. Except as otherwise specifically provided
herein, these Bylaws may be amended by the affirmative vote of a
majority of the Board of Directors, at any regular or special meeting
thereof, if notice of the proposed amendment shall have been
contained in the notice of such meeting. If any Bylaw regulating an
impending election of directors is adopted or amended or repealed by
the Board of Directors, there shall be set forth in the notice of the
next meeting of the stockholders for the election of directors, the
Bylaw so adopted or amended or repealed together with a concise
statement of the changes made.
Exhibit 4.3
THE BOMBAY COMPANY, INC. LOGO
THE BOMBAY COMPANY, INC.
COMMON STOCK PAR VALUE $1.00
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN BOSTON, MASSACHUSETTS AND NEW
YORK, NEW YORK
CUSIP 097924 10 4
SEE REVERSE FOR
CERTAIN DEFINITIONS
THE BOMBAY COMPANY, INC.
FULL-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK
of The Bombay Company, Inc. (hereinafter referred to as the "Corporation"),
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Certificate of
Incorporation, as amended, of the Corporation (a copy of which certificate is
on file with the Transfer Agent), to all of which the holder by acceptance
hereof assents. This certificate is not valid until countersigned and
registered by the Transfer Agent and Registrar.
Witness the seal of the Corporation and the signatures of its duly
authorized officers.
(CORPORATE SEAL - DELAWARE - THE BOMBAY COMPANY, INC. 1975)
Dated:
CARSON R. THOMPSON, PRESIDENT
MICHAEL J. VEITENHEIMER, SECRETARY
COUNTERSIGNED AND REGISTERED:
THE FIRST NATIONAL BANK OF BOSTON
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
THE BOMBAY COMPANY, INC.
The Corporation will furnish to the record holder of this certificate
without charge on written request to such corporation at its principal
place of business a full statement of the powers, designations, preferences
and relative, participating, optional or other special rights of each class
of stock or series thereof which such corporation is authorized to issue and
the qualifications, limitations or restrictions of such preferences and/or
rights.
The following abbreviations, when used in the inscription on the fact of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______Custodian______
TEN ENT - as tenants by the entireties (Cust.) (Minor)
JT TEN - as joint tenants with right Under Uniform Gifts to Minors
of survivorship and not as Act ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]__________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
____________________________________________________________________ Shares
of the capital stock represented by the within Certificate and do hereby
irrevocably constitute and appoint
____________________________________________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated,_______________________________
X__________________________________________
X__________________________________________
NOTICE: THE SIGNATURES(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
THE SIGNATURES(S) SHOULD BE GUARANTEED BY AN "ELIGIBLE
GUARANTOR INSTITUTION" AS DEFINED IN RULE 17Ad-15 UNDER THE
SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
SIGNATURE(S) GUARANTEED BY:
__________________________________________________________
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between The Bombay Company, Inc.
and The First National Bank of Boston, as Rights Agent, dated as of June 1,
1995 as the same may be amended from time to time (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of The Bombay Company,
Inc. Under certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Bombay Company, Inc. will mail to the
holder of this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain circumstances,
as set forth in the Rights Agreement, Rights owned by or transferred to any
Person who is or becomes an Acquiring Person (as defined in the Rights
Agreement) and certain transferees thereof will become null and void and
will no longer be transferable.
October 29, 1997
The Bombay Company, Inc.
550 Bailey Avenue
Suite 700
Forth Worth, Texas 76107
Re: Registration Statement on Form S-8 of The Bombay Company, Inc.
Gentlemen:
We are acting as counsel for The Bombay Company, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of
up to 1,874,971 shares of the Company's Common Stock, par value $1.00 per
share (the "Shares"), which shares are issuable upon the exercise of options
("Options") granted or to be granted from time to time to eligible persons,
pursuant to the provisions of The Bombay Company, Inc. 1996 Long-Term
Incentive Stock Plan (the "Plan"). A Registration Statement on Form S-8
covering the offering and sale of the Shares (the "Registration Statement")
is expected to be filed with the Securities and Exchange Commission on or
about the date hereof.
In reaching the conclusions expressed in this opinion we have examined and
relied upon such documents, corporate records, and other instruments,
including certificates of public officials and certificates of officers of
the Company, and made such further investigation and inquiry as we have
deemed necessary to reach the opinions expressed herein. In making the
foregoing examinations, we have assumed the genuineness of all signatures
on original documents, the authenticity, accuracy, and completeness of all
documents submitted to us as originals, and the conformity to original
documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments and exceptions
hereinafter stated, it is our opinion that the Shares, when sold by the
Company in accordance with the terms of the Plan and the Options for
consideration having a value not less than the par value thereof, will be
validly and legally issued, fully paid and nonassessable.
We express no opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America, in each case as in effect on the date hereof.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
JACKSON WALKER L.L.P.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 for The Bombay
Company, Inc. 1996 Long-Term Incentive Stock Plan of our report dated
March 11, 1997, which appears on page 25 of the 1996 Annual Report to
Shareholders of The Bombay Company, Inc., which is incorporated by
reference in The Bombay Company, Inc.'s Annual Report on Form 10-K for the
fiscal year ended February 1, 1997. We also consent to the incorporation
by reference of our report on the Financial Statement Schedule, which
appears on page 9 of such Annual Report on Form 10-K. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
October 29, 1997
Fort Worth, Texas
THE BOMBAY COMPANY, INC.
1996 LONG-TERM INCENTIVE PLAN
THE BOMBAY COMPANY, INC.
1996 LONG-TERM INCENTIVE STOCK PLAN
TABLE OF CONTENTS
SECTION 1 Purposes of the Plan
SECTION 2 Definitions
SECTION 3 Effective Date of Plan and Duration of Plan
SECTION 4 Plan Administration
a) Committee
b) Committee Authority
c) Cancellation and Reissuance
d) Delegation
e) Limitation of Liability
SECTION 5 Participation
SECTION 6 Available Shares of Common Stock
a) Available Shares
b) Limitations
c) Non-Share Usage
d) Adjustments
SECTION 7 Awards
a) General
b) Foreign Jurisdiction
c) Stock Options
d) Stock Appreciation Rights
e) Stock Awards
SECTION 8 Dividends and Dividend Equivalents
SECTION 9 Payments and Payment Deferrals
SECTION 10 Transferability
SECTION 11 Change-of-Control
SECTION 12 Award Agreements
SECTION 13 Termination and Amendment of the Plan
SECTION 14 Tax Withholding
SECTION 15 Other Benefit and Compensation Programs
SECTION 16 Unfunded Plan
SECTION 17 Use of Proceeds
SECTION 18 Regulatory Approvals
SECTION 19 Future Rights
SECTION 20 Governing Law
SECTION 21 Successors and Assigns
THE BOMBAY COMPANY, INC.
1996 LONG-TERM INCENTIVE STOCK PLAN
1. Purposes of the Plan
The purpose of the 1996 Long-Term Incentive Stock Plan of The Bombay
Company, Inc. is to provide incentives and rewards for employees so
as to promote the interests of the Company and its shareholders by
(i) strengthening the Company's ability to attract and retain highly
competent officers and other key employees; (ii) permit the awarding
of opportunities for plan participants to be rewarded using stock
based incentives; (iii) to provide a means to encourage stock
ownership and proprietary interest in the Company by the recipients
of awards made under the Plan; and (iv) to provide equity ownership
opportunities and performance based incentives to better align the
interests of officers and key employees with those of shareholders.
2. Definitions
"Award" includes, without limitation, stock options (including
incentive stock options under Section 422 of the Code), stock
appreciation rights, stock awards made in restricted and performance
shares or denominated in units equivalent in value to shares or other
awards that are valued in whole or in part by reference to, or are
otherwise based on, the Common Stock, all on a stand alone,
combination or tandem basis, as described in or granted under this
Plan.
"Award Agreement" means a written agreement entered into between the
Company and a Participant setting forth the terms and conditions of
an Award made to such Participant under this Plan, in the form
prescribed by the Committee.
"Board" means the Board of Directors of the Company.
"Change of Control" shall have the meaning specified in Section 11.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means the body appointed by the Board, which shall be
comprised in such a manner as to comply with the requirements, if
any, of Rule 16b-3 (or any successor rule) under the Exchange Act
and of Section 162 of the Code.
"Common Stock" means the common stock of the Company, $1.00 par
value per share.
"Company" means The Bombay Company, Inc., a Delaware corporation and
shall include any entity that is directly or indirectly controlled
by the Company or any entity, including an acquired entity, in which
the Company has a significant equity interest, as determined by the
Committee.
"Employee" means an employee of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the closing price of the Common Stock as
reported on the New York Stock Exchange Composite Transactions Tape
on the relevant valuation date or, if there were no Common Stock
transactions on the valuation date, on the next preceding date on
which there were Common Stock transactions.
"Participant" means an Employee who has been granted an Award under
this Plan.
"Performance Goals" means, with respect to any Performance Period,
goals based on any of the following criteria established by the
Committee and set forth in the applicable Award Agreement(s):
earnings or earnings growth; return on equity, assets or investment;
revenues; expense control; total shareholder return; cash flow; or
assets. Such Performance Goals may be particular to an Employee or
the division, department, branch, line of business, subsidiary or
other unit in which the Employee works, or may be based on the
performance of the Company generally.
"Performance Period" means the period of time designated by the
Committee applicable to a stock Award during which the Performance
Goals shall be measured.
"Plan" means this 1996 Long-Term Incentive Stock Plan.
"Reporting Person" means an officer or director of the Corporation
subject to the reporting requirements of Section 16 of the Exchange
Act.
3. Effective Date of Plan and Duration of Plan
The effective date of this Plan is March 6, 1996 subject to its
approval by the shareholders of the Company at the next annual
meeting or any adjournment thereof. Any grant of any Award under
the Plan prior to such approval shall be deemed to be null and void
if such approval is not obtained within one year of its approval by
the Board. No Award shall be granted pursuant to the Plan on or
after the tenth anniversary date of the effective date, but any
Award granted prior to such tenth anniversary may extend beyond
that date to the date(s) specified in the Award Agreement.
4. Plan Administration
a) Committee. The Committee shall be responsible for
administering the Plan. Each member of the Committee shall serve
for such term as the Board may determine, subject to removal by the
Board at any time.
b) Committee Authority. The Committee shall have full and
exclusive power to interpret the Plan and to adopt such rules,
regulations and guidelines for carrying out the Plan as it may deem
necessary or proper, all of which power shall be executed in the best
interests of the Company and in keeping with the provisions and
objectives of the Plan. This power includes, but is not limited to,
selecting Participants, establishing all Award terms and conditions,
adopting procedures and regulations governing Awards, and making all
other determinations necessary or advisable for the administration of
this Plan, including the authority in the event of a spin-off or
other corporate transaction to permit substitution of an Award
granted under the Plan with an award from another company or an
award denominated in other than shares of Common Stock. All
decisions made by the Committee shall be final and binding on all
persons affected by such decisions.
c) Cancellation and Reissuance. The Committee shall not have
the right to cancel outstanding stock options or stock appreciation
rights for the purpose of replacing or regranting such options or
rights with a purchase price that is less than the purchase price
of the original option or right.
d) Delegation. Except as required by Rule 16b-3 (or any
successor rule) under the Exchange Act with respect to grants of
options, stock appreciation rights, other stock awards, or other
benefits to Participants who are subject to Section 16 of the
Exchange Act, or as otherwise required for compliance with such
Rule 16b-3 or other applicable law, the Committee may delegate all
or any part of its authority under the Plan to any officer of the
Company.
e) Limitation of Liability. No member of the Committee shall
be liable for any action, failure to act, determination or
interpretation made in good faith with respect to this Plan or any
transaction hereunder, except for liability arising from his or her
own willful misfeasance, gross negligence or reckless disregard of
his or her duties. The Company shall indemnify each member of the
Committee for all costs and expenses and, to the extent permitted by
applicable law, any liability incurred in connection with defending
against, responding to, negotiation for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any
kind arising in connection with any actions in administering this
Plan or in authorizing or denying authorization to any transaction
hereunder.
5. Participation
Awards may be granted under the Plan to those Employees of the
Company as the Committee may from time to time select, including
any Employee of an entity acquired by or merged into the Company
pursuant to the assumption, replacement or substitution of awards
previously issued by such entity. In no event may an Award be
granted under the Plan to any person who is not an Employee, except
in circumstances involving the grant of an Award made in tandem with
or replacement of an earlier Award made under the Plan to a former
Employee.
6. Available Shares of Common Stock
a) Available Shares. There shall be an initial allocation of 1,400,000
shares of Common Stock to the Plan, plus any shares of Common Stock
available for delivery under the 1986 Stock Option Plan (the "Prior Plan")
which have not been committed for delivery by grants made under the Prior
Plan. Additionally, and subject to the provisions of Section 6(d) of the
Plan, the aggregate number of shares of Common Stock which shall be
available for delivery to Participants under the Plan shall be increased
each fiscal year following the fiscal year in which the Plan is adopted by
an amount equal to one and one- fourth percent (1.25%) of the total number
of issued shares of Common Stock as reported in the Company's Consolidated
Balance Sheet in the Annual Report on Form 10-K for the immediately
preceding fiscal year end. Any shares of Common Stock which are represented
by Awards or portions of Awards made under the Plan or the Prior Plan which
are settled, forfeited, expire or are canceled without the delivery of
shares, and any shares of Common Stock which may be tendered, either
actually or by attestation, by a person as full or partial payment made to
the Company in connection with the exercise of any stock option under the
Plan or the Prior Plan shall be available for Awards under the Plan. Any
shares of Common Stock available pursuant to this Section 6 which were
available and not used for Awards in any prior fiscal year shall be carried
forward and be available for Awards in succeeding fiscal years, as well as
any shares reacquired by the Company in the open market or in a private
transaction, in which Fair Market Value is paid for such shares, up to the
extent that the aggregate purchase price of such shares does not exceed the
cumulative amount of cash proceeds received by the Company after the
effective date of the Plan from the exercise of stock options granted under
the Plan or the Prior Plan. The stock subject to the provisions of this
Plan shall either be shares of authorized but unissued Common Stock, shares
of Common Stock held as treasury stock or previously issued shares of
Common Stock reacquired by the Company, including shares purchased on the
open market.
b) Limitations. The aggregate number of shares of Common Stock
that may be represented by Awards granted to any single Participant
under Sections 7(c), 7(d) and 7(e) of the Plan shall not exceed
525,000 for any fiscal year during which the Plan is in effect.
The aggregate number of shares of Common Stock that may be delivered
in settlement of Awards granted pursuant to Section 7(e) of the Plan
shall not exceed 25% of the aggregate number of shares available for
delivery at any time under the Plan under Section 6(a). Further,
the aggregate number of shares of Common Stock that may be covered
by Awards made in the form of incentive stock options intended to
comply with Section 422 of the Code shall not exceed 1,500,000
during the life of the Plan.
c) Non-Share Usage. Cash dividends, dividend equivalents paid
in cash in conjunction with outstanding Awards, and
stock-denominated Awards which are settled in cash shall not reduce
the number of shares available for delivery under the Plan.
Further, any shares that are issued by the Company, and any Awards
that are granted through the assumption of, or in substitution for,
outstanding awards previously granted by an acquired entity shall
not reduce the number of shares available for Awards under the Plan.
No fractional shares of Common Stock shall be delivered under the
Plan. Cash may be paid in lieu of any fractional shares in
settlements of Awards under the Plan.
d) Adjustments. In the event of any stock dividend, stock
split, combination or exchange of equity securities, merger,
consolidation, recapitalization, spin-off or other distribution
(other than normal cash dividends) of the Company's assets to
shareholders, or any other change affecting shares of Common Stock
or share price, the Committee shall make appropriate adjustments to
reflect such change with respect to: (i) the number of shares of
Common Stock that may be available and delivered as set forth in
Section 6(a) and the limitations on such Awards as set forth in
Section 6(b); (ii) the number of shares of Common Stock covered by
each outstanding Award made under the Plan; and (iii) the exercise
price per share of Common Stock for any outstanding stock options,
stock appreciation rights or similar Awards under the Plan.
7. Awards
a) General. The Committee shall determine the type or types of
Award(s) set forth below to be made to each Participant. Awards
may be granted singly, in combination or in tandem. Awards also may
be made, subject to the provision of Section 4(c), in replacement of
or as alternatives to other Awards or rights under the Plan or any
other employee compensation plan of the Company, including the plan
of any acquired entity.
b) Foreign Jurisdiction. Awards may be granted, without
amending the Plan, to Participants who are foreign nationals or
employed outside the United States or both, on such terms and
conditions different from those specified in the Plan as may, in
the judgment of the Committee, be necessary or desirable to further
the purposes of the Plan or to accommodate differences in local law,
tax policy or custom. Moreover, the Committee may approve such
supplements to or alternative versions of the Plan as it may
consider necessary or appropriate for such purposes without thereby
affecting the terms of the Plan as in effect for any other purpose;
provided, however, no such supplement or alternative version shall:
(a) increase the number of available shares of Common Stock under
Section 6(a); or (b)increase the limitations contained in Section
6(b).
c) Stock Options. A stock option represents a right to
purchase a specified number of shares of Common Stock during a
specified period as determined by the Committee. The purchase price
per share for each stock option shall be not less than 100% of the
Fair Market Value on the date of grant. A stock option may be in the
form of an incentive stock option which, in addition to being
subject to the applicable terms, conditions and limitations
established by the Committee, complies with Section 422 of the Code.
The shares of Common Stock covered by a stock option may be exercised
only by written notice to the Secretary of the Company, in
accordance with the applicable Award Agreement, accompanied by cash
payment or such other payment method permitted by the Committee,
including (i) inendering (either actually or by attestation) shares
of Common Stock valued at Fair Market Value on the date of exercise;
(ii) authorizing a third party to sell the shares (or a sufficient
portion thereof) acquired upon exercise of a stock option, and
assigning the delivery to the Company of a sufficient amount of the
sale proceeds to pay for all the shares acquired through such
exercise and any tax withholding obligations resulting from such
exercise; or (iii) any combination of the above. The Committee may
grant stock options that provide for the grant of a subsequent
restoration stock option if the exercise price has been paid for by
tendering shares to the Company. Any restoration stock option shall
be for the number of shares tendered in exercising the predecessor
option. The restoration stock option exercise price shall be the
then-current Fair Market Value, and the term of such restoration
option may not extend beyond the remaining term of the original
option.
d) Stock Appreciation Rights. A stock appreciation right
represents a right to receive a payment, in cash, shares of Common
Stock or a combination, equal to the excess of the Fair Market
Value of a specified number of shares on the date the right is
exercised over (a) the Fair Market Value on the date the right was
granted as set forth in the applicable Award Agreement or (b), in
the case of a stock appreciation right granted in tandem with or
substitution for a stock option, the purchase price per share of
such stock option.
e) Stock Awards. A stock Award represents an Award made in
shares of Common Stock or denominated in units equivalent in value
to shares of Common Stock. All or part of any stock Award shall be
subject to conditions and restrictions established by the Committee
and set forth in the Award Agreement, which may include, but not
be limited to, continuous service with the Company and/or the
achievement of Performance Goals over a specified Performance
Period. The Committee may select one criterion or multiple criteria
for measuring performance, and the measurement may be based on total
Company or business unit performance or based on comparative
performance with other companies.
8. Dividends and Dividend Equivalents
The Committee may provide that any Awards under the Plan earn
dividends or dividend equivalents. Such dividends or dividend
equivalents may be paid currently or may be credited to a
Participant's account. Any crediting of dividends or dividend
equivalents may be subject to such restrictions and conditions as
the Committee may establish, including reinvestment in additional
shares of Common Stock or share equivalents. Payment of credited
or deferred dividends shall be made upon the lapsing of any
restrictions imposed on the Award in respect of which the deferred
dividends were paid, and any dividends deferred in respect to an
Award shall be forfeited upon the forfeiture of such Award. The
total number of shares of Common Stock available for grant under
Section 6(a) shall not be reduced to reflect any dividends or
dividend equivalents that are reinvested into additional shares or
credited as units equivalent to shares.
9. Payments and Payment Deferrals
Payment of Awards may be in the form of cash, shares of Common
Stock, other Awards or combinations thereof as the Committee shall
determine, and with such restrictions as it may impose. The
Committee also may require or permit participants to elect to defer
the delivery of shares or the settlement of Awards in cash under
such rules and procedures as it may establish under the Plan.
It also may provide that deferred settlements include the payment
or crediting of interest on the deferral amounts, or the payment or
crediting of dividend equivalents where the deferral amounts are
denominated in share equivalents. In addition, the Committee may
stipulate in an Award Agreement, either at the time of grant or by
subsequent amendment, that a payment or portion of a payment of an
Award be delayed in the event that Section 162(m) of the Code (or
any successor or similar provision of the Code affecting tax
deductibility) would operate to disallow a tax deduction by the
Company for all or a portion of such payment. The period of any
such delay in payment shall be until the payment or portion thereof,
is tax deductible, or such earlier date as the Committee shall
determine.
10. Transferability
No Award shall be assignable or transferable except by will, by
the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or as otherwise
may be permitted by the Committee. During the lifetime of a
Participant, an Award shall be exercisable only by such Participant
or such Participant's guardian, legal representative or assignee
pursuant to a qualified domestic relations order.
11. Change-of-Control
(a) Notwithstanding anything contained in this Plan or any Award
Agreement to the contrary, in the event of a Change of Control, as defined
below, any of the following may, in the sole discretion of the Committee,
occur with respect to any Employee Awards outstanding as of such Change of
Control:
(i) the time periods for exercising or realizing and vesting periods of
Awards will be accelerated, restrictions will lapse and performance
standards will be deemed to have been attained so that such Awards may be
immediately exercised, realized or vested in full on or before the relevant
date fixed in the Award Agreement;
(ii) outstanding stock Awards granted pursuant to Section 7(a) shall be
settled in cash;
(iii) upon exercise of a stock option or an incentive stock option
(collectively, an "Option") during the 60-day period from and after the
date of a Change of Control, the Participant exercising the Option may in
lieu of the receipt of Common Stock upon the exercise of the Option, elect
by written notice to the Corporation to receive an amount in cash equal to
the excess of the aggregate value (as defined below) of the shares of Common
Stock covered by the Option or portion thereof surrendered determined on the
date the Option is exercised, over the aggregate exercise price of the
Option (such excess is referred to herein as the "Aggregate Spread");
provided, however, and notwithstanding any other provision of this Plan,
if the end of such 60-day period from and after the date of a Change of
Control is within six months of the date of grant of an Option held by a
Participant who is a Reporting Person, such Option shall be canceled in
exchange for a cash payment to the Participant equal to the Aggregate
Spread on the day which is six months and one day after the date of grant
of such Option. As used in this Section 11(a)(iii) the term "Value" means
the higher of (i) the highest Fair Market Value during the 60-day period
from and after the date of a Change of Control and (ii) if the Change of
Control is the result of a transaction or series of transactions described
in paragraphs (i) or (iii) of the definition of Change of Control, the
highest price per share of the Common Stock paid in such transaction or
series of transactions (which in the case of paragraph (i) shall be the
highest price per share of the Common Stock as reflected in a Schedule 13D
filed by the person having made the acquisition);
(iv) if a Participant's employment terminates for any reason other than
retirement or death following a Change of Control, any options held by such
Participant may be exercised by such Participant until the earlier of three
months after the termination of employment or the expiration date of such
options; and
(v) all outstanding Awards shall become non-cancelable.
(b) A "Change of Control" of the Company, unless otherwise determined by
the Board, shall be deemed to have occurred upon the happening of any of the
following events:
(i) the acquisition, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) of beneficial ownership of 20% or more of either the then
outstanding shares of Common Stock of the Company or the combined voting
power of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; provided, however, that any
acquisition by the Company or any of its subsidiaries, or any employee
benefit plan (or related trust) of the Company or its subsidiaries, or any
corporation with respect to which following such acquisition, more than 50%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Common Stock and voting securities of the
Company immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such acquisition, of the
then outstanding shares of Common Stock of the Company or the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, as the case may
be, shall not constitute a Change of Control;
(ii) individuals who, as of January 1, 1996, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to such date whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are used in rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or
(iii) approval by the shareholders of the Company of a reorganization,
merger or consolidation of the Company, in each case, with respect to which
the individuals and entities who were the respective beneficial owners of
the Common Stock and voting securities of the Company immediately prior to
such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
Common Stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such reorganization, merger
or consolidation, or a complete liquidation or dissolution of the Company
or of the sale or other disposition of all or substantially all of the
assets of the Company.
12. Award Agreements
Awards under the Plan shall be evidenced by Award Agreements that
set forth the terms, conditions and limitations for each Award, including
the term of the Award (except that in no event shall the term of any
incentive stock option exceed a period of ten years from the date of its
grant), the provisions applicable in the event the Participant's employment
terminates, and the Company's authority to unilaterally or bilaterally amend,
modify, suspend, cancel or rescind any Award. The granting of an Award
shall be subject to, and conditioned upon, the execution of any such Award
Agreement by the Participant.
13. Termination and Amendment of the Plan
The Plan shall terminate no later than March 5, 2006. The Board may
sooner terminate the Plan and may at any time and from time to time amend,
modify or suspend the Plan; provided, however, that no amendment that
increases the amounts of shares specified in Sections 6(a) and 6(b) or the
price per share specified in Sections 7(c) and 7(d) shall be effective
unless approved by the shareholders of the Company in accordance with
applicable law and regulations.
14. Tax Withholding
The Company shall have the right to deduct from any settlement of an
Award made under the Plan, including the delivery or vesting of shares of
Common Stock, a sufficient amount to cover withholding of any federal,
state or local taxes required by law or such greater amount of withholding
as the Committee shall determine from time to time, or to take such other
action as may be necessary to satisfy any such withholding obligations. If
the Committee permits or requires shares of Common Stock to be used to
satisfy required tax withholding, such shares shall be valued at the Fair
Market Value as of the tax recognition date for such Award.
15. Other Benefit and Compensation Programs
Unless otherwise specifically determined by the Committee,
settlements of Awards received by Participants under the Plan shall not be
deemed a part of a Participant's regular, recurring compensation for
purposes of calculating payments or benefits from any Company benefit plan
or severance program. Further, the Company may adopt other compensation
programs, plans or arrangements as it deems appropriate or necessary.
16. Unfunded Plan
Unless otherwise determined by the Board, the Plan shall be unfunded
and shall not create (or be construed to create) a trust or a separate fund
or funds. The Plan shall not establish any fiduciary relationship between
the Company and any Participant or other person. To the extent any person
holds any rights by virtue of an Award granted under the Plan, such rights
shall constitute, general unsecured liabilities of the Company and shall not
confer upon any Participant any right, title or interest in any assets of
the Company.
17. Use of Proceeds
The cash proceeds received by the Company from the delivery of
shares of Common Stock pursuant to the exercise of stock options or the
settlement of other Awards under the Plan shall be used for general
corporate purposes, including the acquisition of shares to be used in
settlement of other Awards.
18. Regulatory Approvals
The implementation of the Plan, the granting of any Award under the
Plan, and the delivery of shares of Common Stock upon the exercise or
settlement of any Award shall be subject to the Company's procurement of all
approvals and permits required by regulatory authorities having jurisdiction
over the Plan, the Awards granted under it or the shares issued pursuant to
it.
19. Future Rights
No person shall have any claim or rights to be granted an Award
under the Plan, and no Participant shall have any rights under the Plan to
be retained in the employ of the Company. Likewise, participation in the
Plan will not in any way affect the Company's right to terminate the
employment of the Participant at any time with or without cause.
20. Governing Law
The validity, construction and effect of the Plan and any actions
taken or relating to the Plan shall be determined in accordance with the
laws of the State of Delaware and applicable federal law.
21. Successors and Assigns
The Plan shall be binding on all successors and assigns of a
Participant, including, without limitation, the estate of such Participant
and the executor, administrator or trustee of such estate, or any receiver
or trustee in bankruptcy or representative of the Participant's creditors.
However, no award or other interest in the Plan may be assigned, pledged or
otherwise alienated, except to the extent permitted in accordance with
Section 10 of the Plan and the applicable Award Agreement.
