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.
1993 STOCK DEFERRAL PLAN FOR NON-EMPLOYEE DIRECTORS
(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
75,000 shares
Proposed Maximum
Offering Price Per
Share(1)
$7.21875
Proposed Maximum
Aggregate Offering
Price (1)
$541,406.25
Amount of
Registration Fee
$164.05
(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.
PROSPECTUS
75,000 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 nonemployee
directors of the Company (the "Selling Stockholders") of up to 75,000 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 elections to defer
the receipt of annual and committee chair retainer fees and fees for
participation in Board and committee meetings earned by the Selling
Stockholders and to receive such fees in Shares, pursuant to the provisions
of the Company's 1993 Stock Deferral Plan for Non-Employee
Directors (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;
(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; and
(v) The Registration Statement on Form S-8, filed contemporaneously with
the filing of this Registration Statement, with respect to the Company's 1996
Long-Term Incentive Stock Plan.
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.
SELLING STOCKHOLDERS
The following nonemployee directors of the Company are eligible to receive
shares of the Company's Common Stock under the Plan:
<TABLE>
<CAPTION>
Common
Stock
Offered For Ownership
Ownership Selling of Percentage
of Common Shareholders' 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 58,812 878 59,690 *
President, Chief
Executive Officer,
and Director
Clayton E. Niles 85,624 12,370 97,994 *
Chairman of the Board
Glenn E. Hemmerle 4,000 0 4,000 *
Director
Carson R. Thompson 301,169 0 301,169 *
Director
Edmund H. Damon 62,186 2,639 64,825 *
Director
Robert E. Runice 33,312 9,763 43,075 *
Director
A. Roy Megarry 22,700 0 22,700 *
Director
Shirley Young 34,750 7,231 41,981 *
Director
Barbara Bass 66,562 8,962 75,524 *
Director
</TABLE>
[FN]
* Less than 1%.
(1) Includes shares owned now and shares to be acquired upon exercise of
options, some of which are not exercisable within 60 days of the date of this
Prospectus, but does not include shares already acquired pursuant to deferral
options under the Plan.
(2) Total amount of shares purchased or purchasable pursuant to deferral
options under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
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 ("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.
75,000 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;
(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; and
(v) The Registration Statement on Form S-8, filed contemporaneously with
the filing of this Registration Statement, with respect to the Company's 1996
Long-Term Incentive Stock Plan.
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.(3)
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. 1993 Stock Deferral Plan for
Non-Employee Directors.(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.
(3) Filed contemporaneously herewith as an exhibit to a Registration
Statement on Form S-8 filed on the date of this Registration Statement with
respect to the Company's 1996 Long-Term Incentive Stock Plan, which Form S-8
is incorporated herein by reference.
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
Edmond 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.(3)
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. 1993 Stock Deferral Plan for
Non-Employee Directors.(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.
(3) Filed contemporaneously herewith as an exhibit to a Registration
Statement on Form S-8 filed on the date of this Registration Statement with
respect to the Company's 1996 Long-Term Incentive Stock Plan, which Form S-8
is incorporated herein by reference.
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.
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 75,000 shares of the Company's Common Stock, par value $1.00 per share
(the "Shares"), which shares are issuable upon the election by eligible
persons to receive Shares in lieu of certain director fees, pursuant to the
provisions of The Bombay Company, Inc. 1993 Stock Deferral Plan for
Non-Employee Directors (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 issued by the
Company in accordance with the terms of the Plan 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. 1993 Stock Deferral Plan for Non-Employee Directors 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
1993 STOCK DEFERRAL PLAN FOR NON-EMPLOYEE DIRECTORS
Effective October 13, 1993
As Amended March 12, 1997
ARTICLE I - PURPOSE OF PLAN
1.1 Purpose of Plan. The Bombay Company, Inc. (the "Company") has
adopted the 1993 Stock Deferral Plan for Non-Employee Directors
(the "Plan") to provide to members of the Board of Directors of the Company
who are not employees of the Company or any of its affiliates or subsidiaries
("Non-Employee Directors") an election to defer (the "Deferral Election")
receipt of all or any portion of annual and Committee chair retainer fees
("Retainer Fees") and fees earned for participation in Board or Committee
meetings ("Meeting Fees") and for payment of such fees in units
("Stock Units") equivalent to shares of the Company's Common Stock, $1.00
par value per share (the "Stock"). The Plan is intended to provide
Non-Employee Directors with a larger equity interest in the Company in order
to attract and retain well-qualified individuals to serve as Non-Employee
Directors and to enhance the identity of interests between Non-Employee
Directors and the shareholders of the Company.
ARTICLE II - ELIGIBILITY AND PARTICIPATION
2.1 Eligibility and Participation. Only Non-Employee Directors shall be
eligible to participate in the Plan, and participation in the Plan is subject
to irrevocable Deferral Elections as set forth hereinafter.
ARTICLE III - DEFERRAL ELECTIONS
3.1 Deferral of Retainer and Meeting Fees.
(a) Deferral Elections. Commencing on the effective date of the
Plan, payment of all or a portion of the Retainer Fees and Meeting Fees may
be deferred by election of the Non-Employee Director. Each such Deferral
Election shall be made prior to the beginning of the next specified payment
period, which for purposes of this Plan shall be the following fiscal quarter
provided however that such election shall not be less than six (6) months
after any prior election, or otherwise to the extent necessary to satisfy
the requirements of Rule 16b-3(d) promulgated under the Securities Exchange
Act of 1934 ("1934 Act"), as the same may be hereafter amended.
(b) Crediting Stock Units to Accounts. Amounts deferred
pursuant to Section 3.1(a) shall be credited quarterly to a bookkeeping
reserve account maintained by the Company ("Account") in Stock Units. The
number of Stock Units credited to an Account with respect to any
Non-Employee Director shall equal any deferred cash amount divided by the
average closing price of the Stock on the New York Stock Exchange for each
day of the quarter during which such cash amount would have been paid but
for the Deferral Election pursuant to Section 3.1(a).
(c) Fully Vested Stock Units. All Stock Units credited to a
Non-Employee Director's Account pursuant to this Article III shall be at
all times fully vested and nonforfeitable.
(d) Payment of Stock Units. Stock Units credited to a
Non-Employee Director's Account pursuant to the Plan shall be payable in an
equal number of shares of Stock in a single distribution made at such time
specified by the Non-Employee Director in the applicable Deferral Election,
provided that the designated payment date with respect to any election must
be no earlier than twelve (12) months following the establishment of the
affected Stock Unit.
ARTICLE IV - DIVIDEND EQUIVALENT PAYMENTS
4.1 Dividend Equivalent Payments. In the event a cash dividend is
declared with respect to Stock, the Account of each participating
Non-Employee Director shall be credited with Stock Units ("Dividend
Equivalent Payment") equal to the product of (i) the per-share cash dividend
payable with respect to each share of Stock on such date, and (ii) the total
number of Stock Units credited to his Account as of the record date
corresponding to such dividend payment date, divided by the closing price of
the Stock on the New York Stock Exchange on the record date corresponding to
such dividend.
ARTICLE V - DELIVERY OF STOCK CERTIFICATES.
5.1 Stock Unit Payments. The Company shall issue and deliver to the
Non-Employee Director a Stock certificate for payment of Stock Units as soon
as practicable following the date on which Stock Units are payable.
ARTICLE VI - STOCK
6.1 Stock. The aggregate number of shares of Stock that may be issued
under the Plan shall not exceed seventy-five thousand (75,000) shares
(as adjusted for 3:2 stock split paid 12/31/93) unless such number of shares
is adjusted as provided in Article VII of this Plan or increased by an
amendment to the Plan.
ARTICLE VII - ADJUSTMENT UPON CHANGES IN CAPITALIZATION
7.1 Adjustment Upon Changes in Capitalization. In the event of a stock
dividend, stock split or combination, reclassification, recapitalization or
other capital adjustment of shares of Stock, the number of Stock Units
credited to Accounts shall be appropriately adjusted to account for the
change. No fractional shares of Stock shall be issued under the Plan on
account of any adjustment specified herein. The Stock Units created pursuant
to this Plan shall not affect in any way the right or power of the Company
to issue additional Stock or other securities, make adjustments,
reclassifications, reorganizations or other changes in its corporate,
capital or business structure, to participate in a merger, consolidation or
share exchange or to transfer its assets or dissolve or liquidate.
ARTICLE VIII - TERMINATION OR AMENDMENT OF PLAN
8.1 In General. The Board of Directors of the Company may at any time
terminate, suspend or amend this Plan. However, except as otherwise
determined by the Board, no such amendment shall become effective without
the approval of the shareholders of the Company to the extent shareholder
approval is required in order to comply with Rule 16b-3 under the 1934 Act.
8.2 Written Consents. No amendment may adversely affect the right of
any Non-Employee Director to receive any Stock or Dividend Equivalent Payment
pursuant to an outstanding Stock Unit without the written consent of such
Non-Employee Director.
ARTICLE IX - GOVERNMENT REGULATIONS
9.1 Government Regulations.
(a) The obligations of the Company to issue any Stock granted
under this Plan shall be subject to all applicable laws, rules and
regulations and the obtaining of all such approvals by governmental agencies
as may be deemed necessary or appropriate by the Board of Directors of the
Company.
(b) Except as otherwise provided in Article VIII of this Plan,
the Board of Directors of the Company may make such changes as may be
necessary or appropriate to comply with the rules and regulations of any
governmental authority.
ARTICLE X - MISCELLANEOUS
10.1 Unfunded Plan. The Plan shall be unfunded with respect to the
Company's obligation to pay any amounts due pursuant to Stock Units and
Dividend Equivalent Payments, and a Non-Employee Director's rights to
receive any payment of any Stock Unit or Dividend Equivalent Payment shall
be not greater than the rights of an unsecured general creditor of the
Company.
10.2 Assignment; Encumbrances. Except as otherwise provided herein or
approved by the Board of Directors, the right to receive payment with
respect to a Stock Unit under this Plan is not assignable or transferable
and shall not be subject to any encumbrances, liens, pledges or charges of
the Non-Employee Director or his or her creditors. Any such attempt to
assign, transfer or hypothecate any Stock Unit or any right to receive a
Stock Unit shall be void and of no force and effect whatsoever.
10.3 Changes of Control, Acceleration of Right to Receive Stock.
(a) Notwithstanding anything in the Director Deferral Plan to
the contrary, in the event a Change of Control occurs, then all vested stock
units held in account for participating directors shall become immediately
payable in the form of stock on the date of the occurrence of such change
in control.
(b) "Change of Control" shall mean the occurrence of any of the
following events:
(i) any "person" or "group" of persons, as such terms are used
in Section 13 and 14 of the 1934 Act other than any employee benefit plan
sponsored by the Company, becomes the "beneficial owner", as such term is
used in Section 13 of the Act, of twenty percent (20%) or more of the
outstanding shares of the Company's Stock entitled to vote for the election
of directors; or
(ii) any shares of any class of the Company's Stock are purchased
pursuant to a tender or exchange offer other than an offer by the Company;
or
(iii) the approval by the requisite vote of the Company's
shareholders of any merger, consolidation, sale of assets, liquidation or
reorganization as a result of which the Company will not survive as a
publicly-owned corporation.
10.4 Designation of Beneficiaries. A Non-Employee Director may designate
a beneficiary or beneficiaries to receive any distributions under the Plan
upon his or her death.
10.5 Applicable Law. The validity, interpretation and administration of
this Plan and any rules, regulations, determinations or decisions made
hereunder, and the rights of any and all persons having or claiming to have
any interest herein or hereunder, shall be determined exclusively in
accordance with the laws of the State of Texas, without regard to the choice
of laws provisions thereof.
10.6 Headings. The headings in this Plan are for reference purposes only
and shall not affect the meaning or interpretation of this Plan.
10.7 Notices. All notices or other communications given pursuant to this
Plan shall be in writing and shall be sufficiently given if hand-delivered
or mailed by certified mail, addressed to any Non-Employee Director at
the address contained in the records of the Company or to the Company at
its principal office.
ARTICLE XI - EFFECTIVE DATE OF PLAN
11.1 Effective Date of Plan. This Plan became effective on October 13,
1993 by approval of shareholders.
