-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BC8cOl+EljmGE8B89X10vo55R92dZBKRhk9y+iYdJE3e5kRB+fpnvAh3pwxjGEij e4FB00Y0auVssAKptxC7KQ== 0000096287-02-000016.txt : 20020414 0000096287-02-000016.hdr.sgml : 20020414 ACCESSION NUMBER: 0000096287-02-000016 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020214 EFFECTIVENESS DATE: 20020214 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BOMBAY COMPANY INC CENTRAL INDEX KEY: 0000096287 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FURNITURE STORES [5712] IRS NUMBER: 751475223 STATE OF INCORPORATION: DE FISCAL YEAR END: 0128 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-82758 FILM NUMBER: 02547195 BUSINESS ADDRESS: STREET 1: 550 BAILEY AVE STE 700 CITY: FORT WORTH STATE: TX ZIP: 76107 BUSINESS PHONE: 8173478200 MAIL ADDRESS: STREET 1: 550 BAILEY AVENUE STREET 2: SUITE 700 CITY: FORT WORTH STATE: TX ZIP: 76107 FORMER COMPANY: FORMER CONFORMED NAME: TANDY BRANDS INC DATE OF NAME CHANGE: 19901114 S-8 1 direq01.txt 2001 DIRECTOR EQUITY S-8 II-2 As filed with the Securities and Exchange Commission on February 13, 2002 Registration Statement 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 (I.R.S. Employer jurisdiction Identification No.) of incorporation or organization) 550 Bailey Avenue, Suite 700 Fort Worth, Texas 76107 (Zip Code) (Address of principal executive offices) The Bombay Company, Inc. Amended and Restated 2001 Non-Employee Directors' Equity 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 and telephone number of agent for service) Copy to: Fred W. Fulton Thompson & Knight L.L.P. 1700 Pacific Avenue, Suite 3300 Dallas, Texas 75201 (214) 969-1700 __________________________________ CALCULATION OF REGISTRATION FEE Title of securities to be Amount Proposed Proposed Amount Registered to be maximum maximum of register offering aggregate registra ed(2) price per offering tion fee share(1) price(1) Common Stock, par value 781,032 $2.30 $1,796,374 $166 (3) $1.00 per share shares (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933 (the "Securities Act") and based on the average of the high and low prices of the common stock reported on the New York Stock Exchange on February 12, 2002. (2) Pursuant to Rule 416, shares issuable upon any stock split, stock dividend or similar transaction with respect to the shares covered hereby are also registered hereunder. (3) Pursuant to General Instruction E of Form S-8, in addition to the 500,000 shares of common stock that are being registered on this Form S-8 for issuance under The Bombay Company, Inc. Amended and Restated 2001 Non- Employee Directors' Equity Plan (the "Successor Plan"), the registrant is registering on this Form S-8 the shares of its common stock that were not issued under the registrant's 1991 Director Stock Option Plan (the "1991 Plan") and its 1993 Stock Deferral Plan for Non-Employee Directors (the "1993 Plan") (collectively, the "Carryover Shares"). The Carryover Shares were previously registered for sale on Registration Statements on Form S-8 (No. 333-96353 and 333-39059), and the registration fees in respect of the Carryover Shares were paid at the times of filing such registration statements. The Successor Plan provides that the Carryover Shares may be issued under the Successor Plan. As is evidenced by Post-Effective Amendment No. 1 to the Registration Statement for the 1991 Plan and Post-Effective Amendment No. 1 to the Registration Statement for the 1993 Plan (both of which are filed concurrently with this Registration Statement), the filing fees that have already been paid but that remain unused total $525.81 and $43.80, respectively. Thus, the registration fee of $166.00 for this Registration Statement is reduced by $569.61, for a net amount owed of $0. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* _____________ * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents have been filed by the Registrant with the Securities and Exchange Commission and are incorporated by reference in this Registration Statement: (1) the Registrant's Annual Report on Form 10-K for the fiscal year ended February 3, 2001 (the "Annual Report"); (2) 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; (3) the description of the Common Stock of the Registrant contained in the Registration Statement on Form 8-A filed May 17, 1993, including any amendment or report filed for the purpose of updating such description; and (4) the description of certain rights of certain holders of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed June 12, 1995. In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Upon the written or oral request of any person to whom a copy of this Registration Statement has been delivered, the Company will provide without charge to such person a copy of any and all documents (excluding exhibits thereto unless such exhibits are specifically incorporated by reference into such documents) that have been incorporated by reference into this Registration Statement but not delivered herewith. Requests for such documents should be addressed to 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 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 if 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 Registrant provides that a director of the Registrant shall not be personally liable to the Registrant 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 Registrant 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 Registrant provide that the Registrant will reimburse any director or officer of the Registrant, 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 Registrant or any of its subsidiaries, or of any other corporation at the request of the Registrant. The Registrant 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 Registrant. 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. INDEMNITY AGREEMENTS The Registrant has entered into an indemnity agreement with each of its directors. The indemnity agreements provide certain protections to such persons against legal claims and related expenses. A form of the indemnity agreement is filed as an Exhibit to the Registrant's Annual Report on Form 10-K for the year ended June 30, 1986. INSURANCE The Registrant 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 Registrant pursuant to the foregoing provisions, 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, as amended, and is therefore unenforceable. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The following documents are filed as exhibits to this Registration Statement: 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) 23.1 Consent of PricewaterhouseCoopers, LLP. (3) 24.1 Power of Attorney (included on signature page of this Registration Statement). 99.1 The Bombay Company, Inc. Amended and Restated 2001 Non-Employee Directors' Equity 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. 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; (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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; and (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 (1)(i) and (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 with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (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 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. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 13, 2002. THE BOMBAY COMPANY, INC. By: /s/ CARMIE MEHRLANDER Carmie Mehrlander, Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below authorizes Michael J. Veitenheimer to execute in the name of 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 on February 13, 2002. Signature Capacity in Which Date Signed /s/ CARMIE MEHRLANDER Chairman of the 2/08/02 Carmie Mehrlander Board, President and Chief Executive Officer) /s/ ELAINE D. CROWLEY Vice President, 2/12/02 Elaine D.Crowley Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) /s/ BARBARA BASS Director 2/07/02 Barbara Bass /s/ JOHN H. COSTELLO Director 2/07/02 John H.Costello /s/ GLENN E. HEMMERLE Director 2/07/02 Glenn E. Hemmerle Director James A. Marcum /s/ JULIE L. REINGANUM Director 2/07/02 Julie L. Reinganum /s/ BRUCE R. SMITH Director 2/07/02 Bruce R. Smith Smith /s/ NIGEL TRAVIS Director 2/07/02 Nigel Travis INDEX TO EXHIBITS Exhibit Number 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) 23.1 Consent of PricewaterhouseCoopers, LLP. (3) 24.1 Power of Attorney (included on signature page of this Registration Statement). 99.1 The Bombay Company, Inc. Amended and Restated 2001 Non- Employee Directors' Equity 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. EX-23 2 consent23.txt PWC CONSENT EXHIBIT 23 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 14, 2001 relating to the financial statements of The Bombay Company, Inc., which appears in The Bombay Company Inc.'s Annual Report on Form 10-K for the year ended February 3, 2001. /s/ PRICEWATERHOUSECOOPERS LLP PricewaterhouseCoopers LLP Fort Worth, Texas February 13, 2002 EX-99 4 eqplandoc.txt Exhibit 99.1 The Bombay Company, Inc. Amended and Restated 2001 Non-Employee Directors' Equity Plan Introduction The Bombay Company, Inc. Amended and Restated 2001 Non- Employee Directors' Equity Plan (the "Plan") is hereby adopted effective as of February 1, 2001 to amend and restate The Bombay Company, Inc. 2000 Non-Employee Directors' Equity Plan (the "Original Plan"), which was adopted to continue the purposes of the expiring 1991 Directors' Stock Option Plan that was originally adopted by the Board of Directors (the "Board") of The Bombay Company, Inc., a Delaware corporation (the "Company"), on August 14, 1991, and approved by shareholders on November 12, 1991, and subsequently amended by shareholder approval on October 13, 1994, and further amended by the Board on March 1, 1998 and on April 17, 1998 and again by shareholders on May 21, 1998. The Original Plan incorporated and superseded the 1993 Stock Deferral Plan for Non-Employee Directors, which was originally adopted by the Board on August 5, 1993 and approved by shareholders on October 13, 1993, and subsequently amended by the Board on March 12, 1997. The Plan was subsequently amended by the Board on May 17, 2001. 1. Purpose. (a) The purpose of the Plan is to provide a means by which each member of the Board who is not an employee of the Company or of any Affiliate (each such person being hereafter referred to as a "Non-Employee Director") will be given an opportunity to purchase common stock of the Company. The Plan also permits Non- Employee Directors to elect to receive their annual and Committee Chair retainer fees and meeting attendance fees in the form of common stock of the Company or to defer such payments. The word "Affiliate" as used in the Plan means any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Company. (b) The Company, by means of the Plan, seeks to retain the services of persons now serving as Non-Employee Directors, to secure and retain the services of persons capable of serving in such capacity, and to provide incentives for such persons to exert maximum efforts for the success of the Company. 2. Administration. (a) The Plan shall be administered by the Board unless and until the Board delegates administration to a committee, as provided in paragraph 2(c). (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (i) To construe and interpret the Plan and options granted under it ("Options"), and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Option agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective; (ii) To amend, suspend or terminate the Plan as provided in paragraph 12; and (iii) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company. (c) The Board may delegate administration of the Plan to a committee (the "Committee") composed of not fewer than two (2) members of the Board who are "non-employee directors" under rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as such rule may be hereafter amended. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 3. Shares Subject to the Plan. (a) Subject to the provisions of paragraph 11 relating to adjustments upon changes in stock, the stock that may be sold pursuant to Options or used to pay Fees (as defined below) shall not exceed in the aggregate Five Hundred Thousand (500,000) shares of the Company's common stock, plus (i) any shares available for delivery under the 1991 Directors' Stock Option Plan and 1993 Stock Deferral Plan for Non-Employee Directors which have not been committed for delivery by grants made or stock units credited under either of such plans, and (ii) any shares subject to options granted under either of such plans which are settled, forfeited, expired or canceled without the delivery of shares. If any Option shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under the Option shall again become available for issuance pursuant to the Plan. (b) All stock sold or otherwise delivered pursuant to the Plan shall be treasury shares. 4. Eligibility. Only Non-Employee Directors may participate in the Plan. 5. Non-Discretionary Option Grants. (a)Each person who is elected for the first time to be a Non- Employee Director shall, upon the date of his or her initial election to be a Non-Employee Director by the Board or the shareholders of the Company, be granted an Option (an "Initial Option") to purchase the lesser of (i) Eight Thousand (8,000) shares of common stock of the Company or (ii) a number of shares of common stock of the Company having an aggregate Fair Market Value on the date of grant of $75,000 (rounded to the nearest whole number of shares), on the terms and conditions set forth herein. "Fair Market Value" shall mean the last reported sale price of shares of the Company's common stock as reported on the applicable stock exchange on the relevant date of valuation or, if there is no such sale, the last reported sale price of such shares so reported on the nearest preceding date upon which such a sale took place. (b) On the third business day following issuance of the Company's annual earnings release each year each Non-Employee Director shall be granted an Option (an "Annual Option") to purchase the lesser of (i) Eight Thousand (8,000) shares of common stock of the Company or (ii) a number of shares of common stock of the Company having an aggregate Fair Market Value on the date of grant of $75,000 (rounded to the nearest whole number of shares) on the terms and conditions set forth herein. (c) The Company intends that the Options not be incentive stock options as that term is used in Section 422 of the Internal Revenue Code of 1986, as amended. 6. Option Provisions. Each Option shall contain the following terms and conditions: (a) No Option shall be exercisable after the expiration of ten (10) years from the date it was granted. (b) The per share exercise price of each Option shall be one hundred percent (100%) of the Fair Market Value of the common stock of the Company on the date the Option is granted. (c) The purchase price of stock acquired pursuant to the exercise of an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the Option is exercised; (ii) by delivery to the Company of shares of common stock of the Company valued at the Fair Market Value of such shares on the date of exercise; or (iii) by a combination of such methods of payment. (d) The Board or the Committee, as applicable, may, in its sole discretion, provide in any Option agreement (or any amendment to any existing Option agreement) such provisions regarding transferability of the Option as the Committee or the Board, as applicable, in its sole discretion, deems appropriate. (e) Options shall vest with respect to each optionee as follows: (i) the Initial Option shall vest and become exercisable at the rate of 20% per year over a five (5) year period after the grant date of the Initial Option, and (ii) each Annual Option shall vest in full and become exercisable six (6) months after the grant date of the Annual Option; provided that in each case the optionee has, during the entire period prior to such vesting date, continuously served as a Non-Employee Director, whereupon such Option shall become fully exercisable in accordance with its terms with respect to that portion of the shares represented by that installment; and provided further that in the event of a conflict between the provisions of this paragraph 6(e) and the provisions of paragraph 6(l) or 6(m), the provisions of paragraph 6(l) or 6(m), as applicable, shall control. (f) The Company may require any optionee, or any person to whom an Option is transferred under paragraph 6(d), as a condition of exercising any such Option: () to give written assurances satisfactory to the Company as to the optionee's knowledge and experience in financial and business matters, and () to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the Option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the Option has been registered under a then-currently- effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then-applicable securities laws. (g) Notwithstanding anything to the contrary contained herein, an Option may not be exercised unless the issuance of shares upon exercise of the Option has been registered under the Securities Act or, if such issuance has not been so registered, the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. (h) Neither an optionee nor any person to whom an Option is transferred under paragraph 6(d) shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such Option unless and until such person has satisfied all requirements for exercise of the Option pursuant to its terms. (i) Nothing in the Plan or in any instrument executed pursuant hereto shall confer upon any Non-Employee Director any right to continue in the service of the Company or any Affiliate or shall affect any right of the Company, the Board, its shareholders or any Affiliate to terminate the service of any Non- Employee Director with or without cause. (j) No Non-Employee Director, individually or as a member of a group, and no beneficiary or other person claiming under or through him or her, shall have any right, title or interest in or to any shares of the Company's common stock reserved for the purposes of the Plan except as to such shares of common stock, if any, as shall have been reserved for such Non-Employee Director pursuant to an Option granted to him or her or pursuant to an election of such Non-Employee Director pursuant to paragraph 9 or 10. (k) In connection with each Option, it shall be a condition precedent to the Company's obligation to issue or transfer shares to a Non-Employee Director that such Non-Employee Director acknowledge full responsibility for any federal or other tax with respect to such issuance or transfer. (l) If a Non-Employee Director shall terminate performance of services for the Company because of death or disability, all Options outstanding as to such Non-Employee Director shall be fully exercisable, at any time, or from time to time, within the longer of (i) one (1) year after the date of death or termination of performance of services because of disability or (ii) the exercise period presented in the second sentence of paragraph 6(m); provided that in no event shall such Options be exercisable later than the expiration date specified pursuant to paragraph 6(a). In the case of death, exercise may be made by the person or persons to whom the Non-Employee Director's rights under the Option pass by will or applicable law, or if no such person has such rights, by the Non-Employee Director'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. (m) If a Non-Employee Director's performance of services for the Company shall terminate for any reason other than death or disability, all Options outstanding as to such Non-Employee Director shall at the time of such termination, to the extent not otherwise exercisable, become immediately exercisable for the purchase of the full number of shares subject to such Options; provided that the Non-Employee Director has at the time of such termination completed at least five (5) years of service on the Board. A departing Non-Employee 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, to a maximum exercise period of thirty-six (36) months; provided that in no event shall such Options be exercisable later than the expiration date specified in paragraph 6(a). 7. Covenants of the Company (a) During the terms of the Options, the Company shall keep available at all times the number of shares of its common stock required to satisfy its obligations under such Options. (b) So long as any Stock Units (as defined below) are in an Account (as defined below), the Company shall keep available at all times the number of shares of its common stock required to satisfy its obligations in respect of such Stock Units. 8. Use of Proceeds from the Exercise of Options. Proceeds from the exercise of Options shall constitute general funds of the Company. 9. Payment of Fees in Common Stock. (a)A Non-Employee Director may elect to receive payment of all or any portion of his or her annual retainer and Committee Chair retainer fees ("Retainer Fees") and meeting attendance fees ("Meeting Fees") (Retainer Fees and Meeting Fees are referred to collectively herein as "Fees") from the Company in the form of common stock of the Company. Such an election shall be effective with respect to Fees payable commencing with the next fiscal quarter following the date of the election. An election to receive payment of Fees in the form of the Company's common stock may be revoked only by a subsequent election to receive payment of Fees in cash or to defer such Fees pursuant to paragraph 10. Such election shall be effective with respect to Fees payable commencing with the next fiscal quarter. Notwithstanding the above, no election permitted in this paragraph 9 shall be effective if such election would cause the payment of Fees in the Company's common stock to be a non-exempt purchase under Rule 16b- 3 promulgated under the Exchange Act or terminate the Non- Employee Director's status as a non-employee director under Rule 16b-3, unless approved by the Board or the Committee. The number of shares of the Company's common stock to be paid to a Non- Employee Director shall be determined by dividing the amount of Fees payable by the Fair Market Value of the Company's common stock on the date such Fees would have been paid in cash but for the Non-Employee Director's election to receive payment of such Fees in the form of common stock of the Company. The amount of any fractional share shall be paid in cash. (b) If a Non-Employee Director has elected to receive his or her Fees in the form of common stock of the Company, a certificate for the number of shares of common stock to which the Non-Employee Director is entitled shall be issued as soon as reasonably practicable following the date the director is to receive the Fees. 10. Deferral of Fees. (a) Commencing on the effective date of the Plan, payment of all or a portion of the Fees may be deferred by election of the Non- Employee Director (a "Deferral Election"). Deferral Elections shall be made on an annual basis; provided that such election shall satisfy the requirements of Rule 16b-3(d) promulgated under the Exchange Act, as such rule may be hereafter amended. (b) Amounts deferred pursuant to paragraph 10(a) shall be credited at the end of each fiscal quarter to a bookkeeping reserve account ("Account") maintained by the Company in stock units ("Stock Units"). The number of Stock Units credited to an Account with respect to any Non-Employee Director shall be determined by dividing the amount of Fees to be deferred by the Fair Market Value of the Company's common stock on the date such Fees would have been paid in cash but for the Deferral Election. (c) All Stock Units credited to a Non-Employee Director's Account pursuant to the Plan shall be at all times fully vested and nonforfeitable. (d) Stock Units credited to a Non-Employee Director's Account shall be payable in an equal number of shares of common stock of the Company in a single distribution made at such time as may be specified by the Non-Employee Director in the applicable Deferral Election; provided that the designated payment date with respect to any Deferral Election must be no earlier than the first day of the calendar year after the calendar year in which the Fees would have been received but for the Deferral Election. The amount of any fractional shares shall be paid in cash. (e) The Company shall issue and deliver to the Non-Employee Director a certificate for the number of shares of its common stock due such director as payment for Stock Units as soon as practicable following the date on which Stock Units are payable. (f) The Plan shall be unfunded with respect to the Company's obligation to pay any amounts due pursuant to Stock Units, and a Non-Employee Director's rights to receive any payment of any Stock Unit shall be not greater than the rights of an unsecured general creditor of the Company. (g) Except as otherwise provided herein or approved by the Board, the right to receive payment with respect to a Stock Unit 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. (h) A Non-Employee Director may designate a beneficiary or beneficiaries to receive any distributions under the Plan upon his or her death. (i) In the event a cash dividend is declared with respect to the Company's common stock, the Account of each participating Non-Employee Director shall be credited with a number of Stock Units determined as follows: First, calculate the product of (i) the cash dividend payable with respect to each share of common stock and (ii) the total number of Stock Units credited to the Account as of the record date for such dividend; and Second, divide such product by the Fair Market Value of the Company's common stock on the payment date for such dividend. 11. Adjustments upon Changes in Stock. If any change is made in the stock of the Company through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise, the Plan (including the total number of shares and kind of shares issuable under the Plan and the number of shares issuable pursuant to grants of Options), outstanding Options (including the exercise prices thereof) and Stock Units will be appropriately adjusted by the Board to account for the change. The Options granted under the Plan and the Stock Units created pursuant to the Plan shall not affect in any way the right or power of the Company to issue additional common 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. 12. Amendment, Suspension or Termination of the Plan. The Board may at any time, and from time to time, amend, suspend or terminate the Plan; provided that no amendment shall be effective unless approved by the shareholders of the Company to the extent the Board determines shareholder approval of such amendment is necessary or desirable; and provided further that rights and obligations under any Option granted or Stock Unit credited or to be credited before any amendment, suspension or termination of the Plan shall not be altered or impaired by such amendment, suspension or termination of the Plan except with the consent of the person to whom the Option was granted or Stock Unit credited. 13. Changes of Control, Acceleration of Right to Exercise and Distribution of Stock Units. (a) Notwithstanding anything in the Plan or in an agreement evidencing any Option to the contrary, in the event a Change of Control (as defined below) occurs, then each Option shall become immediately exercisable, on the date of the occurrence of such Change of Control, for the purchase of the full number of shares subject to such Option for a period not to exceed the shorter of thirty-six (36) months or the remaining life of the Option; provided that immediately after the consummation of a Change of Control as defined under paragraph 13(b)(iii), all Options shall, to the extent not previously exercised, terminate and cease to be outstanding except to the extent assumed by the successor corporation (or an affiliate thereof) or otherwise expressly continued in full force and effect pursuant to the terms of the Change of Control. In addition, and notwithstanding the provisions of paragraph 10(d), all Stock Units credited to an Account for a Non-Employee Director shall, on the date of the occurrence of a Change of Control, be immediately payable to such director in the form of shares of common stock of the Company equal in number to the Stock Units held as of the date of the Change of Control. (b) "Change of Control" shall mean the occurrence of any of the following events: (i) the acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership of 20% or more of either the then outstanding shares of common stock of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided that any acquisition by the Company or any of its subsidiaries, or any employee benefit plan (or related trust) of the Company or its subsidiaries, or any corporation with respect to which following such acquisition, more than 50% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the common stock and voting securities of the Company immediately prior to such acquisition in substantially the same proportion as their ownership, immediately prior to such acquisition, of the then outstanding shares of common stock of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, as the case may be, shall not constitute a Change of Control; (ii) individuals who, as of February 1, 2001, constituted the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided that any individual becoming a director subsequent to such date whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of the Company (as such terms are used in rule 14a-11 of Regulation 14A promulgated under the Exchange Act); or (iii) approval by the shareholders of the Company of a reorganization, merger or consolidation of the Company and the satisfaction of all conditions precedent to the transaction, in each case, with respect to which the individuals and entities who were the respective beneficial owners of the common stock and voting securities of the Company immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such reorganization, merger or consolidation, or a complete liquidation or dissolution of the Company or of the sale or other disposition of all or substantially all of the assets of the Company. (c) With respect to a Change of Control as defined under paragraph 13(b)(iii), if the timing and mechanics of the transaction constituting the Change of Control will be such that the holders of Options will not have a reasonable opportunity to exercise their Options prior to the applicable record date with respect to, or the date of consummation of, as applicable, such transaction, the Board or officers of the Company shall make arrangements in the agreement related to such transaction to allow holders of Options to receive the same economic benefit the holders of the Options would have received had the holders exercised their Options prior to the effective date of such Change of Control and held the shares of common stock of the Company issuable upon exercise of such Options as of the applicable record date with respect to, or the date of consummation of, as applicable, the transaction constituting such a Change of Control. 14. Effective Date of Plan. The Plan shall be effective as of February 1, 2001. -----END PRIVACY-ENHANCED MESSAGE-----