EXHIBIT 10(a)
EMPLOYEE OPTION AWARD AGREEMENT
NON-QUALIFIED AND INCENTIVE STOCK OPTIONS
PURSUANT TO
THE BOMBAY COMPANY, INC.
1996 LONG-TERM INCENTIVE STOCK PLAN
This Option Award Agreement ("the Agreement") is made this ___ day of
________, 2005 between THE BOMBAY COMPANY, INC., a Delaware corporation (the
"Company") and ____________________, an employee of the Company or one of its
subsidiaries (the "Employee").
WHEREAS, the Company desires to carry out the purposes of The Bombay
Company, Inc. 1996 Long-Term Incentive Stock Plan (the "Plan") by affording
Employee the opportunity to purchase shares of the Company's $1.00 par value
common stock (the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option. The Company hereby grants to Employee the right and
option (the "Option") to purchase an aggregate of _______ shares of
the Company's Shares, such Shares being subject to adjustment as
provided in paragraph 8 hereof, and on the terms and conditions
herein set forth (the "Option Shares"). Of the Shares granted
pursuant to this Option, _______ shares are granted as an Incentive
Stock Option within the meaning of Section 422A of the Internal
Revenue Code of 1954, as amended (the "ISO Shares"), and ______
shares are granted as a Non-qualified Option (the "NQO Shares").
2. Purchase Price. The purchase price of the Option Shares shall be
$_____ per Share, such purchase price being 100% of the fair market value of
such Shares on the date first appearing above (the "Date of the Grant").
3. Exercise of Option.
A. ISO Shares: Unless expired as provided in paragraph 5
below, and subject to the special provisions of paragraph 6 below, the
Option for ISO Shares may be exercised from time to time in whole or in
part for not more than 25% of the entire number of ISO Shares at any
time after the first anniversary of the Date of Grant, and an additional
25% of the total ISO Shares on each of the three (3) succeeding
anniversaries of the Date of Grant.
B. NQO Shares: Unless expired as provided in paragraph 5
below, and subject to the special provisions of paragraph 6 below, the
Option for NQO Shares may be exercised from time to time in whole or in
part for not more than 25% of the entire number of NQO Shares at any
time after the first anniversary of the Date of Grant, and an additional
25% of the total NQO Shares on each of the three (3) succeeding
anniversaries of the Date of Grant.
4. Manner of Exercise; Payment of Purchase Price.
A. Subject to the terms and conditions of this Agreement, the
Option shall be exercised by written notice to the Company at its principal
office. Such notice shall state the election to exercise the Option and shall
specify the number of Option Shares sought to be exercised pursuant to the
notice. Such notice of exercise shall be signed by Employee and shall be
irrevocable when given.
B. The notice of exercise shall be accompanied by the full
payment of the purchase price for the Option Shares in cash by certified check
or bank cashiers check or through satisfactory arrangements for payment by a
broker representing the Employee in the sale of some or all of the Option
Shares. Subject to approval of an authorized committee of the Board of
Directors (the "Committee"), payment of the purchase price may be accomplished
by the surrender of stock certifications representing Shares having an
aggregate fair market value on the date of exercise equal to the purchase price
of the Option Shares, or by a combination of cash and Shares.
C. Upon receipt of the purchase price, and subject to the
terms of paragraph 11, a certificate representing the Option Shares exercised
shall be registered in the name of the person or persons so exercising the
Option. In the event the Option shall be exercised pursuant to paragraph 7, by
any person or persons other than the Employee, such notice shall be accompanied
by appropriate proof satisfactory to the Company of the right of such person or
persons to exercise the Option. All Shares issued as a result of an exercise
of an Option as provided herein shall be fully paid and non-assessable.
D. The payment of withholding tax liability by Employee shall
be a condition precedent to the Company's obligation to issue any certificates
for Shares resulting from an exercise of an Option.
5. Exercise and Expiration of Option. This Option, if not exercised,
shall expire and become null and void upon the expiration of three (3) months
after Employee ceases to be employed by the Company or any of its subsidiaries
(subject to being extended based upon service duration with the Company) unless
such termination shall have been for cause, as determined by the Committee, in
which event the Option shall be null and void as of the date of such
termination. Notwithstanding the above, if Employee retires from the Company
or any of its subsidiaries (as determined by the Committee in its sole
discretion), the Option may, at the Committee's discretion, remain exercisable
for a period not to exceed 36 months following such retirement. In the event
of Employee's death or permanent disability, the Option shall be exercisable
for a period of 12 months following such death or disability. Notwithstanding
the above, the Option shall, without exception, become null and void once a
period of 10 years shall have lapsed since the Date of Grant. Except as
provided in paragraph 6 below, only those portions of this Option vested as of
the date of termination of Employee's employment may be exercised.
6. Acceleration of Exercise Dates. Notwithstanding the provisions of
Paragraph 3 above relating to the vesting of this Option in installments, at
any time prior to the fourth (4th) anniversary of the Date of Grant, (i) in the
event the Company's annual earnings per share, measured as of the end of the
Company's fiscal year, equals or exceeds fifty cents ($.50) per share, the
Option Shares s hall be 100% vested effective with the public announcement of
such earnings and (ii) the Committee may, in its discretion, permit this Option
to be 100% vested, until the expiration date provided in paragraph 5 above, for
the entire number of Option Shares covered hereby upon the retirement of
Employee or any Change in Control of the Company (as defined in the Plan).
7. Option Nontransferable. Unless permitted by law or regulation and
approved by the Committee, the Option and any right related thereto shall not
be transferable by Employee otherwise than by will or by the laws of descent
and distribution and may be exercised during Employee's lifetime only by
Employee. Upon the death of Employee, the Option may be exercised by
Employee's executor, administrator, legatee or distributee, as the case may be.
8. Adjustments of Shares Subject to Option. If any Shares shall at
any time be changed or exchanged by reason or reorganization, merger,
consolidation, recapitalization, reclassification, stock split, combination of
shares or a dividend payable in stock, then the aggregate number of Option
Shares subject to this Agreement and the purchase price of such Option Shares
shall be automatically adjusted such that Employee's proportionate interest
shall be maintained as before the occurrence of such event. The determination
of any such adjustment by the Committee shall be final, binding and conclusive.
9. No Contract. This Agreement does not constitute a contract for
employment and shall not affect the right of the Company to terminate
Employee's employment for any reason whatsoever.
10. Rights as Shareholder. This Option shall not entitle Employee or
any permitted transferee to any rights of a shareholder of the Company or to
any notice of proceedings of the Company with respect to any Option Shares
issuable upon exercise of this Option unless and until the Option has been
exercised for such Shares.
11. Restriction on Issuance of Shares. The Company shall not be
required to issue or deliver any certificates for Shares purchased upon the
exercise of an Option prior to the obtaining of any approval from any
governmental agency which the Company shall, in its sole discretion, determine
to be necessary or advisable, and the completion of any registration or other
qualification of such Shares under any state or federal law, ruling or
regulations of any governmental body which the Company shall, in its sole
discretion, determine to be necessary or advisable. In addition, if Shares
reserved for issuance upon exercise of Options shall not then be registered
under the Securities Act of 1933, the Company may, upon Employee's exercise of
any Option, require Employee or his permitted transferee to represent in
writing that the Shares being acquired are for investment and not with a view
to distribution, and may xxxx the certificate for the Shares with a legend
restricting transfer and may issue stop transfer orders relating to such
certificate to the transfer agent.
12. Lapse of Option. The Agreement shall be null and void in the
event Employee shall fail to sign and return a counterpart hereof to the
Company within thirty (30) days of its delivery to Employee.
13. Confidentiality and Non-Solicitation Restrictions. In
consideration of Employee's receipt of the above stock option grant, Employee
agrees as follows:
A. Employee will not disclose to any person any confidential
information obtained while in the employ of the Company, including, without
limitation, any of the Company's inventions, methods of distribution, vendors,
customers or other trade secrets; provided, however, that this provision shall
not preclude Employee from use of or disclosure of information known generally
to the public or of information not considered confidential by persons engaged
in the business conducted by the Company or from disclosure required by law or
court order. Upon termination, Employee shall immediately return to the
Company all documents, reports, files, memoranda, records, keys and pass cards,
software and other physical or personal property which Employee has received or
prepared or helped to prepare in connection with his or her employment which is
in Employee's possession or control and Employee agrees not to retain any
copies, duplications, reproductions or excerpts thereof.
B. Employee will not now or for a period of one (1) year in
the future solicit and/or attempt to recruit employees of the Company for other
employment with any subsequent employer or attempt directly or indirectly to
solicit the trade or business of any current or prospective customer, supplier
or partner of the Company.
C. In the event Employee fails to comply with the provisions
of paragraphs A and B above, the Company shall have the right to rescind any
transaction involving the Shares granted pursuant to this Option up to six (6)
months prior to such failure to comply and for up to two (2) years thereafter.
In the event of any such rescission, Employee shall pay to the Company the
amount of any gain realized or payment received as a result of the rescinded
exercise in such manner and on such terms and conditions as may be required,
and the Company shall be entitled to set-off against the amount of any such
gain any amount owed to the Employee by the Company.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereto.
15. Modification. No change or modification of this Agreement shall
be valid or binding upon the parties unless the change or modification is in
writing and signed by the parties; provided, however, that the Company may
change or modify this Agreement without the Participant's consent or signature
if the Company determines, in its sole discretion, that such change or
modification is necessary for purposes of compliance with or exemption from the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended,
or any regulations or other guidance issued thereunder. Notwithstanding the
preceding sentence, the Company may amend the Plan to the extent permitted by
the Plan.
16. Governing Instrument and Law. This Option and any Shares issued
hereunder shall in all respects by the terms and provisions of the Plan, and by
the laws of the State of Texas, and in the event of a conflict between the
terms of this Agreement and the terms of the Plan, the terms of the Plan shall
control.
THE BOMBAY COMPANY, INC.
By:
Accepted and Agreed:
Date:
