As filed with the Securities and Exchange Commission on February 7, 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.
1996 LONG-TERM INCENTIVE STOCK PLAN
(Full title of the Plan)
MICHAEL J. VEITENHEIMER, ESQ.
VICE PRESIDENT, SECRETARY, AND GENERAL COUNSEL
THE BOMBAY COMPANY, INC.
550 BAILEY AVENUE, SUITE 700
FORT WORTH, TEXAS 76107
(817) 347-8200
(Name, Address, including zip code and telephone
number, including area code, of agent of service)
___________________________
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 value 1,428,919 Shares(2) $4.3125 $6,162,213 $1,626.82
</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
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.33-40736, dated May 21, 1991, Registration Statement No. 33-55306,
dated December 2, 1992 and Registration No. 333-39057, dated October 29, 1997,
on Form S-8.
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to 1,428,919 shares of
Common Stock issuable pursuant to The Bombay Company, Inc. 1996 Long-Term
Incentive Stock Plan, 476,427 which became available for issuance pursuant to
the Plan on February 1, 1998, 476,871 which became available for issuance
pursuant to the Plan on January 31, 1999 and 475,621 which became available for
issuance pursuant to the Plan on January 30, 2000 pursuant to Section 6(a) of
the Plan.
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. 1996 Long-Term Incentive Stock Plan.(2)
(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 7, 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.
Signatures Title
/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. 1996 Long-Term Incentive Stock Plan.(2)
(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 7, 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 1,428,919 shares of the Company's Common Stock, par value $1.00 per share
(the "Shares"), which shares are issuable upon the grant of certain awards or
the exercise of options ("Options") granted or to be granted from time to time
to eligible persons, pursuant to the provisions of The Bombay Company, Inc. 1996
Long-Term Incentive Stock Plan (the "Plan"). A Registration Statement on Form
S-8 covering the offering and sale of the Shares (the "Registration Statement")
is expected to be filed with the Securities and Exchange Commission on or about
the date hereof.
In reaching the conclusions expressed in this opinion 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
us.
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
