EXHIBIT 4
AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "Amendment") by and
between The Bombay Company, Inc., a Delaware corporation (the "Company"), and
EquiServe Trust Company, N.A., as Rights Agent (the "Rights Agent"), is made
and entered into this 26th day of May, 2005, to be effective as of June 1,
2005.
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of June 1, 1995 (as amended pursuant to that certain
Amendment to Rights Agreement dated as of February 22, 2002, the "Rights
Agreement"), specifying the terms of the Rights (capitalized terms used in this
Amendment and not defined herein shall have the meaning assigned to those terms
in the Rights Agreement);
WHEREAS, the Company and the Rights Agent now desire to amend the Rights
Agreement in accordance with Section 27 thereof;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
1. AMENDMENT TO SECTION 1.
Subsection (a) of Section 1 of the Rights Agreement is hereby
amended (i) by replacing the term, "15%", in each place where such term
appears, with the term, "20%" and (ii) by inserting the following parenthetical
phrase between the words, "practicable" and "divested":
"(as determined, in good faith, by the Board of Directors
of the Company)".
2. AMENDMENT TO SECTION 2.
Section 2 of the Rights Agreement is hereby amended by deleting
the period at the end of the last sentence of Section 2 and adding the
following to the end of Section 2:
", upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise,
and in no event be liable for, the acts or omissions of any
such co-Rights Agent."
3. AMENDMENT TO SECTION 3.
Subsection (a) of Section 3 of the Rights Agreement is hereby
amended by replacing the term, "15%", with the term, "20%".
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4. AMENDMENT TO SECTION 7.
a. Subsection (a) of Section 7 of the Rights Agreement is
hereby amended by replacing the term, "June 1, 2005", with the term, "June 1,
2015".
b. Subsection (b) of Section 7 of the Rights Agreement is
hereby amended by replacing the term, "$50.00", with the term, "$35.00".
5. AMENDMENTS TO SECTIONS 14 AND 17.
Subsections (b) and (c) of Section 14 of the Rights Agreement and
Section 17 of the Rights Agreement are hereby amended (i) by inserting the term
"or exchange," after the term, "exercise", in each place where such term
appears, and (ii) by inserting the term, "or exchanged", after the term,
"exercised", in each place where such term appears.
6. AMENDMENT TO SECTION 21.
Section 21 of the Rights Agreement is hereby amended by inserting
the following sentence after the first sentence thereof:
"In the event the transfer agency relationship in effect
between the Company and the Rights Agent terminates, the
Rights Agent will be deemed to resign automatically on the
effective date of such termination; and any required notice
will be sent by the Company."
7. AMENDMENT TO SECTION 30.
Section 30 of the Rights Agreement is hereby amended (i) by
redesignating the existing text of Section 27 as subsection (a) of Section 27
and (ii) by adding the following subsections (b) and (c) to Section 27:
"(b) It is understood that the TIDE Committee (as
described below) of the Board of Directors shall review and
evaluate this Agreement in order to consider whether the
maintenance of this Agreement continues to be in the best
interests of the Company, its stockholders and other
relevant constituencies of the Company at least once every
three years, or sooner than that if (i) any Person shall
have made a proposal to the Company or its stockholders, or
taken any other action that, if effective, could cause such
Person to become an Acquiring Person hereunder, and (ii) if
a majority of the members of the TIDE Committee shall deem
such review and evaluation appropriate after giving due
regard to all relevant circumstances. Following each such
review, the TIDE Committee shall communicate its
conclusions to the full Board of Directors, including any
recommendation in light thereof as to whether this
Agreement should be modified or the Rights should be
redeemed. The TIDE Committee shall be comprised of members
of the Board of Directors who are not officers, employees
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or Affiliates of the Company and shall be the Governance
and Nominations Committee of the Board of Directors (or any
successor committee) as long as the members of such
committee meet such requirements.
(c) The TIDE Committee and the Board of Directors,
when considering whether this Agreement should be modified
or the Rights should be redeemed, shall have the power to
set their own agenda and to retain at the expense of the
Company their choice of legal counsel, investment bankers
and other advisors. The TIDE Committee and the Board of
Directors, when considering whether this Agreement should
be modified or the Rights should be redeemed, shall have
the authority to review all information of the Company and
to consider any and all factors they deem relevant to an
evaluation of whether this Agreement should be modified or
the Rights should be redeemed."
8. ADDITION OF NEW SECTION 35.
The Rights Agreement is hereby amended by adding a new Section 35,
reading in its entirety as follows:
"Section 35. Force Majeure. Notwithstanding
anything to the contrary contained herein, Rights Agent
shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable
control including, without limitation, acts of God,
terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or
mechanical difficulties with information storage or
retrieval systems, labor difficulties, war, or civil
unrest."
9. AMENDMENTS TO EXHIBIT B.
a. Exhibit B to the Rights Agreement is hereby amended by
replacing the term, "June 1, 2005", in each place where such term appears, with
the term, "June 1, 2015."
b. Exhibit B to the Rights Agreement is hereby amended by
replacing the term, "$50.00", with the term, "$35.00".
c. Exhibit B to the Rights Agreement is hereby amended by
replacing the term, "The First National Bank of Boston", in each place where
such term appears, with the term, "EquiServe Trust Company, N.A."
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10. AMENDMENTS TO EXHIBIT C.
a. Exhibit C to the Rights Agreement is hereby amended by
replacing the term, "June 1, 2005", in each place where such term appears, with
the term, "June 1, 2015."
b. Exhibit C to the Rights Agreement is hereby amended by
replacing the term, "$50.00", with the term, "$35.00".
11. NO OTHER AMENDMENTS.
Except as expressly amended hereby, the terms of the Rights
Agreement will remain in full force and effect in all respects.
12. GOVERNING LAW.
This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state.
13. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each
of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
duly executed on the date first set forth above.
THE BOMBAY COMPANY, INC.
By: /S/ XXXXXXX X. XXXXXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Vice President, Secretary and
General Counsel
EQUISERVE TRUST COMPANY, N.A.
By: /S/ XXXXX XXXXXX-XXXX
Name: Xxxxx Xxxxxx-Xxxx
Title: Managing Director
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