As filed with the Securities and Exchange Commission on February 8, 2000.
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 75-1475223
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
THE BOMBAY COMPANY, INC.
550 BAILEY AVENUE, SUITE 700
FORT WORTH, TEXAS 76107
(Address of principal executive (Zip Code)
offices)
THE BOMBAY COMPANY, INC.
AMENDED AND RESTATED 1991 DIRECTOR STOCK OPTION 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)
___________________________
COPY TO:
Richard S. Tucker
Jackson Walker L.L.P.
301 Commerce Street, Suite 2400
Fort Worth, Texas 76102
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
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered Per Share(1) Offering Price(1) Registration
Fee
<S> <C> <C> <C> <C>
Common Stock
$1.00 par 90,000 Shares(2) $4.3125 $388,125 $102.47
</TABLE>
(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 February 4, 2000.
(2)This registration statement is deemed to register securities to be
offered
in the future pursuant to terms which provide for a change in the amount of
securities being offered or issued hereby to prevent dilution resulting from
stock splits, stock dividends or similar transactions pursuant to Rule 416.
Pursuant to General Instruction E of Form S-8, this Registration Statement
incorporates by reference the contents of the Registrant's Registration
Statement No.33-51076, dated August 26, 1992, on Form S-8.
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 January 30, 1999
("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.
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
telephone requests for such documents 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).
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 DGLC provides that the to the extent that a present
or former officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceedings referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person 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 present or former 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, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there
are not such directors, or it such directors so direct, by independent legal
counsel in a written opinion, or (4) 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 such
person is not entitled to be indemnified by the corporation as authorized in
Section 145. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation 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 such person's 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 such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person 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 liability, including 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 Michael J. Veitenheimer(3)
23.1 Consent of Pricewaterhousecoopers LLP(3)
23.2 Consent of Michael J. Veitenheimer (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page of this
Registration Statement)
99 The Bombay Company, Inc. Amended and Restated 1991 Director Stock
Option Plan.(3)
(1) Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the year ended July 4, 1993. Such exhibit is incorporated herein
by reference.
(2) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-8, file No.333-39057, dated as of October 29, 1997, and
incorporated herein by reference.
(3) Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended;
(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 the registration
statement or any material change to such information in the
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 of 1934, as
amended, that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act of 1934, as amended, (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
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 February 8, 2000.
THE BOMBAY COMPANY, INC.
By: /s/ Carmie Mehrlander
Carmie Mehrlander
Chief Executive Officer
(Principal Executive Officer)
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.
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 and on February 3, 2000.
Title
Signatures
/s/ Robert S. Jackson Chairman of the Board
Robert S. Jackson
Vice President, Finance
/s/ Elaine D. Crowley and
Treasurer
Elaine D. Crowley (Principal Financial and
Accounting Officer)
/s/ Carmie Mehrlander Chief Executive Officer
Director
Carmie Mehrlander (Principal Executive
Officer)
Director
Glenn E. Hemmerle
/s/ Edmund H. Damon Director
Edmund H. Damon
/s/Robert E. Runice Director
Robert E. Runice
Director
Bruce R. Smith
/s/Barbara Bass Director
Barbara Bass
/s/George B. Cobbe Director
George B. Cobbe
/s/James A. Marcum Director
James A. Marcum
INDEX TO EXHIBITS
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 Michael J. Veitenheimer(3)
23.1 Consent of Pricewaterhousecoopers LLP(3)
23.2 Consent of Michael J. Veitenheimer (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page of this
Registration Statement)
99 The Bombay Company, Inc. Amended and Restated 1991 Director Stock
Option Plan.(3)
(1) Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the year ended July 4, 1993. Such exhibit is incorporated herein
by reference.
(2) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-8, file No.333-39057, dated as of October 29, 1997, and
incorporated herein by reference.
(3) Filed herewith.
EXHIBIT 5.1
February 8, 2000
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:
I am 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 90,000 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. Amended and Restated 1991 Director Stock
Option 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 I 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 I have deemed necessary to
reach the opinions expressed herein. In making the foregoing examinations, I
have assumed the genuineness of all signatures on original documents, the
authenticity, accuracy, and completeness of all documents submitted to me as
originals, and the conformity to original documents of all copies submitted to
me.
Based solely upon the foregoing, subject to the comments and exceptions
hereinafter stated, it is my opinion that the Shares, when issued 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.
I 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.
I hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, I do not admit that I 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,
/s/ Michael J. Veitenheimer
MICHAEL J. VEITENHEIMER
Vice President, Secretary and General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 11, 1999 relating to the
financial statements, which appears in the 1999 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 year ended January 30, 1999.
We also consent to the incorporation by reference of our report dated March 11,
1999 relating to the financial statement schedule, which appears in such Annual
Report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
Fort Worth, Texas
February 2, 2000
EXHIBIT 99
AS AMENDED MARCH 1, 1998
AND APRIL 17, 1998
THE BOMBAY COMPANY, INC.
1991 DIRECTOR STOCK OPTION PLAN
l. PURPOSE. The purpose of The Bombay Company, Inc. 1991 Director Stock
Option Plan ("Director Plan" or "Plan") is to promote the interests of the
Company by providing an inducement to obtain and retain the services of
qualified persons who are neither employees nor officers of the Company to serve
as members of the Board of Directors.
2. DEFINITIONS.
(a) "Administrative Committee" shall mean those persons designated to
administer the Plan.
(b) "Annual Earnings Release" shall mean the press release issued by
the Company after its fiscal year end which briefly summarizes the financial
performance of the Company during the prior fiscal year.
(c) "Annual Option" shall mean an automatic grant of Options each year
as set forth in Section 6(b).
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Company" shall mean The Bombay Company, Inc., a Delaware
corporation.
(g) "Director" shall mean any person serving as a member of the Board.
(h) "Disability" shall mean the condition of an Optionee who is unable
to engage in any substantial gainful activities by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months.
(i) "Eligible Directors" shall mean those members of the Board eligible
to participate in the Plan.
(j) "Fair Market Value" shall mean the last reported sale price of the
shares of the Company's Stock as reported on the applicable stock exchange on
the relevant date for valuation, or, if there is no such sale, the last reported
sale price of such Stock so reported on the nearest preceding date upon which
such sale took place.
(k) "Ineligible Directors" shall mean those members of the Board who are
not eligible to participate in the Plan.
(l) "Initial Option" shall mean the initial grant of Options as set
forth in Section 6(a).
(m) "Option" shall mean an option to purchase shares of Stock, granted
pursuant to the Plan and subject to the terms and conditions described in the
Plan, which is not an incentive stock option within the meaning of Code Section
422A.
(n) "Optionee" shall mean a non-employee director of the Company or any
subsidiary who is designated to receive Options pursuant to Section 4.
(o) "Plan" shall mean The Bombay Company, Inc. 1991 Director Stock
Option Plan, as it may be amended from time to time pursuant to Section 8.
(p) "SEC" shall mean the Securities and Exchange Commission.
(q) "Stock" shall mean the Company's $l.00 par value Common Stock.
(r) "Subsidiary" shall mean a subsidiary corporation as defined in Code
Section 425(f).
3. ADMINISTRATION. The Plan shall be administered by a committee (the
"Administrative Committee") composed of the Ineligible Directors, or, if none,
by the Corporate Secretary. Grants of Options under the Plan and the amount and
nature of the awards to be granted shall be automatic as described in Section 6.
The Administrative Committee, subject to the provisions of the Plan, has the
power to construe the Plan, to determine all questions thereunder and to adopt
and amend such rules and regulations for the administration of the Plan as it
may deem desirable. Any interpretation, determination, or other action made or
taken by the Administrative Committee shall be final, binding, and conclusive.
Any action reduced to writing and signed by all members of the Administrative
Committee shall be as fully effective as if it had been taken by a vote at a
meeting duly called and held. No member of the Administrative Committee shall
be personally liable for any action, determination, or interpretation made in
good faith with respect to the Plan or the Options.
4. ELIGIBILITY. All members of the Board shall be eligible to participate
in the Plan unless they are employees of the Company or any of its Subsidiaries.
5. SHARES SUBJECT TO THE PLAN.
(a) CLASS. The shares which are to be made the subject of awards
granted under the Plan shall be the Company's authorized but unissued Stock. In
connection with the issuance of Stock under the Plan, the Company may repurchase
Stock in the open market or otherwise.
(b) AGGREGATE AMOUNT. The total number of shares of Stock under the
Plan shall not exceed 261,005 shares (subject to adjustment under Section 9(c)).
If any outstanding Option under the Plan expires or is terminated for any
reason, then the Stock allocable to the unexercised portion of such Option shall
not be charged against the limitation of this Section 5(b) and may again become
the subject of an Option granted under the Plan.
6. TERMS, CONDITIONS AND FORM OF OPTION. Each Option granted under the
Plan shall be evidenced by a written agreement in such form as the
Administrative Committee shall from time to time approve, which agreements shall
comply with and be subject to the following terms and conditions:
(a) INITIAL OPTION GRANT. Each Eligible Director shall receive, upon
adoption of the Plan by the Board of Directors, but subject to approval by
stockholders, an initial grant of an Option to purchase the lesser of 5,000
shares of Stock or $75,000 in face value (the "Initial Grant"). For directors
who are Eligible Directors on the date of adoption, such grant shall be
effective three (3) business days following the issuance of the Company's Annual
Earnings Release for fiscal 1991. Any newly elected or appointed Eligible
Director shall receive an Initial Grant on the date of election or appointment
to the Board.
(b) ANNUAL OPTION GRANT. An additional Option to purchase the lesser of
5,000 shares or $75,000 in face value of Stock shall be granted to all directors
who are Eligible Directors on the date of grant, automatically each year
beginning in 1992 on the date which is three (3) business days following the
issuance of the Company's Annual Earnings Release (the "Annual Option"). The
grant of such Options is specifically made subject to the satisfaction of the
eligibility requirements set forth in Section 4 and approval by stockholders as
described in Section 9(g). In the event that such conditions are not met with
respect to any Option granted pursuant to the Plan, such Option shall terminate
and end.
(c) PERIOD OF OPTIONS. The Initial Option shall become exercisable
twenty percent (20%) per year over a five (5) year period from the date of
grant. Notwithstanding the above, however, past service on the Board shall
count towards full vesting of the Initial Option; provided, however, the Initial
Option shall not be exercisable to any extent prior to one (l) year from the
date of grant except as provided in Section 6 relating to director Disability or
Section 10 relating to change of control. Annual Options shall become
exercisable six (6) months after the grant date of the Annual Option; provided,
however, that the Annual Option shall be exercisable in full upon the death or
disability of the Optionee as set forth in Section 6 or change of control as set
forth in Section 10. All Options shall terminate upon the expiration of ten
(10) years from the date which such Options were granted, subject to prior
termination as hereinafter provided.
(d) OPTION PRICE. The price per share of Stock at which an Option may
be exercised shall be equal to the Fair Market Value of the price per share of
Stock on the date the Option is granted.
(e) EXERCISE OF OPTIONS. Options may be exercised (in full or in part)
only by written notice of exercise delivered to the Company at its principal
executive office, accompanied by payment, in cash, equal to the full option
price for the shares of Stock which are exercised.
(f) OPTIONS NON-TRANSFERABLE. No Option granted under the Plan shall be
transferable other than by will or by the laws of descent and distribution. No
interest of any Optionee under an Option or the Plan shall be subject to
attachment, execution, garnishment, sequestration, the laws of bankruptcy or any
other legal or equitable process. During the lifetime of the Optionee, Options
shall be exercisable only by the Optionee who received them or the Optionee's
guardian or legal representative.
(g) DEATH OR DISABILITY. If an Optionee shall terminate performance of
services for the Company and its Subsidiaries because of death or Disability,
all Options outstanding as to such Optionee shall be fully exercisable, at any
time, or from time to time, within the greater of one (1) year after the date of
death or termination of performance of services because of Disability or the
exercise period presented in Section 6(h), but in no event later than the
expiration date specified pursuant to Section 6(c). In the case of death,
exercise may be made by the person or persons to whom the Optionee's rights
under the Option pass by will or applicable law, or if no such person has such
rights, by the Optionee's executors or administrators; provided that such
person(s) consent in writing to abide by and be subject to the terms of the Plan
and the Option and the writing is delivered to the Company.
(h) TERMINATION OF SERVICES AS DIRECTOR. If an Optionee's performance
of services for the Company and its Subsidiaries shall terminate for any reason
other than death or Disability, all Options outstanding as to such Optionee
shall be fully exercisable provided said Optionee has completed at least five
(5) years service on the Board. Except as otherwise provided herein, any
exercisable Options must be exercised within three (3) months after the date of
termination of performance of services. Notwithstanding the above, for all
options granted after March 1, 1998 and for any option granted prior to March 1,
1998 with exercise prices at such grant greater than $4.00 per share, a
departing Director shall have twelve (12) months to exercise vested options for
each full three (3) year term and any partial term served on the Board of
Directors, to a maximum exercise period of thirty-six (36) months.
Notwithstanding the above, in no event shall an option be exercisable later than
the expiration date specified in Section 6(c). For the purposes of the Plan and
any other agreement, the Optionee's performance of services shall be deemed to
have terminated on the earlier of (l) the date when the Optionee's performance
of services in fact terminated or (2) the date when the Optionee gave or
received written notice that his performance of services is to terminate.
(i) NO RIGHTS AS STOCKHOLDER. No Optionee shall have any rights as a
stockholder with respect to any shares subject to an Option prior to the date of
issuance to him of a certificate for such shares, upon the exercise of such
Option.
7. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the grant and
exercise of Options under the Plan, and the obligation of the Company to
transfer shares under such Options shall be subject to all applicable federal
and state laws, rules and regulations, including those related to disclosure of
financial and other information to Optionees, and to any approvals by any
government or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Stock prior to (a)
the listing of such shares on any stock exchange on which the Stock may then be
listed, where such listing is required under the rules or regulations of such
exchange, and (b) the compliance with applicable federal and state securities
laws and regulations relating to the issuance and delivery of such certificates;
provided, however, that the Company shall make all reasonable efforts to so list
such shares and to comply with such laws and regulations.
8. AMENDMENT AND DISCONTINUANCE. The Board may from time to time amend,
suspend, or discontinue the Plan; provided, however, that, subject to the
provisions of Section 9(c), no action of the Board without approval of the
stockholders of the Company may (a) materially increase the number of shares
which may be issued pursuant to Options granted under the Plan or the number of
shares for which an Option may be granted to any participant under the Plan; (b)
change the provisions of the Plan regarding the termination of an Option or the
time when Options may be exercised; (c) change the period during which any
Options may be granted or remain outstanding or the date on which the Plan shall
terminate; (d) change the designation of the class of persons eligible to
receive Options or (e) otherwise materially change the benefits accruing to
participants under the Plan. The requirements of Section 3, 4, 6(a), and 6(b)
shall not be amended more than once every six (6) months, other than to conform
with changes in the Code or the rules and regulations thereunder.
Notwithstanding the foregoing, if the SEC amends SEC Rule l6b-3, such amendments
shall be permissible without stockholder approval to the fullest extent
permitted under such Rule as then in effect.
9. GENERAL PROVISIONS.
(a) ASSIGNABILITY. The rights and benefits under the Plan or any Option
shall not be assignable or transferable by an Optionee other than by will or by
the laws of descent and distribution,
and during the lifetime of the Optionee, Options shall be exercisable only by
the Optionee who received them or the Optionee's guardian or legal
representative.
(b) TERMINATION OF PLAN. No Options may be granted under the Plan after
the date which is ten (10) years after the effective date of the Plan (or if
such date is not a business day, on the next succeeding business day). The Plan
shall automatically terminate after all Options granted thereunder have
terminated or expired.
(c) ADJUSTMENTS IN EVENT OF CHANGE IN STOCK. In the event of any change
in the Stock by reason of any stock dividend, recapitalization, reorganization,
merger, consolidation, split-up, combination, exchange of shares, or of any
similar change affecting the Stock, the number and class of shares subject to
outstanding Options, the option price per share thereof, and any other terms of
the Plan or the Options which in the Administrative Committee's sole discretion
require an equitable adjustment shall be appropriately adjusted consistent with
such change in such manner as the Administrative Committee may deem appropriate.
(d) NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the Plan, nor the
granting of an Option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Company will retain a Director for any period of time, or at any
particular rate of compensation.
(e) ERISA. The Plan is not an employee benefit plan which is subject to
the provisions of the Employee Retirement Income Security Act of 1974, and the
provisions of Code Section 401(a) are not applicable to the Plan.
(f) NON-QUALIFIED STOCK OPTIONS. All Options granted under the Plan
shall be non-qualified options not entitled to special tax treatment under Code
Section 422A as may be amended from time to time.
(g) STOCKHOLDER APPROVAL. The Plan is expressly made subject to the
approval by the holders of a majority of the issued and outstanding shares of
Stock entitled to vote at a meeting of stockholders duly called in accordance
with applicable law. If the Plan is not so approved, the Plan shall not come
into effect and any Option granted pursuant hereto shall terminate and end.
(h) EFFECTIVE DATE OF THE PLAN. The Plan shall take effect August 14,
1991, subject to approval by the stockholders of the Company pursuant to the
provisions of Section 9(g).
(i) GOVERNING LAW. To the extent not superseded by federal law, the
Plan and all determinations made and actions taken pursuant hereto shall be
governed by the laws of the State of Texas and construed accordingly.
(j) VARIATION OF PRONOUNS. All pronouns and any variations thereof
contained herein shall be deemed to refer to masculine, feminine, neuter,
singular, or plural, as the identity of the person or persons may require.
10. CHANGES OF CONTROL, ACCELERATION OF RIGHT TO EXERCISE.
(a) Notwithstanding anything in the Director Plan or in a stock option
agreement evidencing any Option to the contrary, in the event a Change of
Control occurs, then each Option shall become exercisable, during the period
beginning on the date of the occurrence of such Change of Control and ending on
the sixtieth (60th) day following such date, for the purchase of the full number
of shares subject to such Option.
(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 Sections 13 and 14 of the Securities Exchange Act of
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
stockholders 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.
