As filed with the Securities and Exchange Commission on May 15, 2003
Registration No. 333 - ____________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TANDY BRANDS ACCESSORIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2349915
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
690 EAST LAMAR BLVD., SUITE 200, ARLINGTON, TEXAS
(Address of principal executive offices)
76011
(zip code)
TANDY BRANDS ACCESSORIES, INC.
2002 OMNIBUS PLAN
(Full title of the plan)
MARK J. FLAHERTY
690 EAST LAMAR BLVD., SUITE 200
ARLINGTON, TEXAS 76011
(Name and address of agent for service)
(817) 548-0090
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities To be Offering Price Aggregate Registration
To be Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock, $1.00 par value per share 1,548,026 $10.2750 $15,905,967.15 $1,286.79
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(1) Calculated pursuant to paragraphs (c) and (h) of Rule 457, based upon the
average of the high and low prices of Tandy Brands Accessories, Inc.'s
common stock on May 13, 2003 (as reported on the Nasdaq National Market).
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EXPLANATORY NOTE
We are filing this registration statement on Form S-8 (this "Registration
Statement") to register shares of our common stock, par value $1.00 per share
("Common Stock"), issuable upon the exercise of awards granted under the Tandy
Brands Accessories, Inc. 2002 Omnibus Plan (the "Plan"). The Plan is intended to
replace all of our employee and director stock option plans that existed as of
October 16, 2002 with respect to future stock option grants. We will not grant
or issue any additional stock options under or pursuant to any of such stock
option plans as the shares (totaling approximately 398,588 as of October 16,
2002) authorized and reserved for issuance pursuant to future option grants
under such option plans were transferred to the Plan and are authorized and
reserved for issuance thereunder. In addition, all shares of Common Stock
authorized and reserved for issuance on the exercise of stock options
outstanding as of October 16, 2002 under such stock option plans will
automatically be authorized and reserved for issuance under the Plan if such
options are forfeited, terminated, settled in cash in lieu of Common Stock,
exchanged for awards that do not involve Common Stock, or expire unexercised.
Thus, the total number of shares authorized for issuance under the Plan is
398,588 plus an indeterminate number of shares of Common Stock which may be
included under the Plan when options outstanding under our previously existing
stock option plans are cancelled or expire. Based on the foregoing, we have
estimated the total number of shares registrable in connection with the Plan to
be 1,548,026.
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 of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the Securities Act of
1933 (the "Securities Act") is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act 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.
We incorporate by reference into this Registration Statement the following
documents filed with the Securities and Exchange Commission (the "Commission")
as of their respective filing dates:
(a) our Annual Report on Form 10-K (File No. 000-18927) for the year ended June
30, 2002;
(b) our Quarterly Reports on Form 10-Q (File No. 000-18927) for the quarters
ended September 30, 2002, December 31, 2002 and March 31, 2003;
(c) our Current Reports on Form 8-K (File No. 000-18927) filed on August 16,
2002, October 17, 2002, January 22, 2003 and April 17, 2003 (but
specifically excluding those portions merely furnished to the Commission
under Item 9 or Item 12 thereof); and
(d) the description of the our Common Stock contained in our registration
statement on Form 8-A filed with the Commission pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange Act"), including any
amendments or reports filed for the purpose of updating such description.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act after 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. Our Common Stock has been registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE GENERAL CORPORATION LAW (the "DGCL")
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Section 145(a) of the DGCL empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action,
2
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 or she 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 or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she 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 or her
conduct was unlawful.
Section 145(b) of the DGCL empowers a corporation to 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 or she 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) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification may 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 DGCL provides that to the extent a present or former
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
Section 145(d) of the DGCL provides 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 or she has met the applicable
standard of conduct set forth in subsections (a) and (b) of Section 145. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) 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,
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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 he or she 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.
CERTIFICATE OF INCORPORATION
Our Certificate of Incorporation provides that our directors shall not be
personally liable to us or our 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 us or our stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) in respect of certain unlawful dividend payments or stock
purchases or redemptions or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to authorize the
further elimination or limitation of the liability of directors, the liability
of our directors, in addition to the limitation on personal liability provided
in our Certificate of Incorporation, will be limited to the fullest extent
permitted by the DGCL, as amended. Further, any repeal or modification of such
provision of our Certificate of Incorporation by our stockholders will be
prospective only, and will not adversely affect any limitation on the personal
liability of our directors existing at the time of such repeal or modification.
BYLAWS
Our Bylaws provide that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she or a person of whom he or she is the legal
representative, is or was or has agreed to become a director or officer of Tandy
Brands Accessories, Inc. or is or was serving or has agreed to serve at our
request as a director or officer, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving or having agreed to serve as a director or officer, shall
be indemnified and held harmless by us to the fullest extent authorized by
Section 145 of the DGCL, as in effect or as it may be amended from time to time,
against all reasonable expenses incurred by, imposed upon or resulting from any
action, suit or proceeding to which he or she may be made a party by reason of
his or her being or having been a director or officer of Tandy Brands
Accessories, Inc. or any of our subsidiaries, or of any other corporation at our
request. Such indemnity shall inure to the benefit of his or her heirs,
executors and administrators. We may also make such reimbursement in the event
of a settlement of any such action, suit or proceedings prior to final
adjudication when such settlement appears to be in our interest.
INDEMNIFICATION AGREEMENTS
We have entered into Indemnification Agreements pursuant to which we have
agreed to indemnify certain of our directors and officers against judgments,
claims, damages, losses and expenses incurred as a result of the fact that any
director or officer, in his or her capacity as such,
4
is made or threatened to be made a party to any suit or proceeding. Such persons
will be indemnified to the fullest extent now or hereafter permitted by the
DGCL. The Indemnification Agreements also provide for the advancement of certain
expenses to our directors and officers in connection with any such suit or
proceeding.
INSURANCE
We have obtained a directors' and officers' liability insurance policy
insuring our directors and officers against certain losses resulting from
wrongful acts committed by them in their capacities as directors and officers of
Tandy Brands Accessories, Inc., including liabilities arising under the
Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 Certificate of Incorporation of Tandy Brands Accessories, Inc. (incorporated herein by reference
to Exhibits 3.1 and 4.1 to Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1
filed on November 2, 1990 (No. 33-37588)).
4.2 Bylaws of Tandy Brands Accessories, Inc. (incorporated herein by reference to Exhibit 3.2 to
Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1 filed on November 2, 1990 (No.
33-37588)).
4.3 Amendment No. 1 to Bylaws of Tandy Brands Accessories, Inc. (incorporated herein by reference to
Exhibit 3.3 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for the three months
ended March 31, 2002).
4.4 Form of Common Stock Certificate of Tandy Brands Accessories, Inc. (incorporated herein by
reference to Exhibit 4.2 to Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1
filed on December 31, 1990 (No. 33-37588)).
4.5 Amended and Restated Rights Agreement dated as of October 19, 1999 between Tandy Brands
Accessories, Inc. and Bank Boston, N.A. (incorporated herein by reference to Exhibit 4 to Tandy
Brands Accessories, Inc.'s Current Report on Form 8-K filed on November 2, 1999).
4.6 Amendment to Amended and Restated Rights Agreement dated as of October 16, 2001 between Tandy
Brands Accessories, Inc. and Fleet National Bank (formerly Bank Boston, N.A.) (incorporated herein
by reference to Exhibit 4.7 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for
the three months ended March 31, 2002).
4.7 Form of Rights Certificate of Tandy Brands Accessories, Inc. (incorporated herein by reference to
Exhibit 4 to Tandy Brands Accessories, Inc.'s Current Report on Form 8-K filed on November 2, 1999).
5.1 Opinion of Winstead Sechrest & Minick P.C.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Winstead Sechrest & Minick P.C. (included in Exhibit 5.1).*
24.1 Power of Attorney (included on page 9).*
99.1 Tandy Brands Accessories, Inc. 2002 Omnibus Plan (incorporated herein by reference to Exhibit
10.24 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for the three months ended
September 30, 2002).
* Filed herewith.
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ITEM 9. UNDERTAKINGS.
(1) We hereby undertake:
(a) 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;
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;
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)(a)(i) and (1)(a)(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 us pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, 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.
(c) 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.
(2) We hereby undertake that, for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have 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
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(other than the payment by us of expenses incurred or paid by any of our
directors, officers or controlling persons 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, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
Tandy Brands Accessories, 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, hereunto duly authorized, in the City of Arlington, State of Texas,
as of May 15, 2003.
TANDY BRANDS ACCESSORIES, INC.
By: /s/ J.S.B. Jenkins
-----------------------------
J.S.B. Jenkins, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
J.S.B. Jenkins and Mark J. Flaherty, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of May 15, 2003.
/s/ J.S.B. Jenkins /s/ Gene Stallings
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J.S.B. Jenkins Gene Stallings
President, Chief Executive Officer and Director
Director (Principal Executive Officer)
/s/ James F. Gaertner /s/ Roger R. Hemminghaus
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James F. Gaertner Roger R. Hemminghaus
Director and Chairman of the Board Director
/s/ Colombe M. Nicholas /s/ Mark J. Flaherty
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Colombe M. Nicholas Mark J. Flaherty
Director Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ C.A. Rundell, Jr.
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C.A. Rundell, Jr.
Director
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Certificate of Incorporation of Tandy Brands Accessories, Inc. (incorporated herein by reference
to Exhibits 3.1 and 4.1 to Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1
filed on November 2, 1990 (No. 33-37588)).
4.2 Bylaws of Tandy Brands Accessories, Inc. (incorporated herein by reference to Exhibit 3.2 to
Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1 filed on November 2, 1990 (No.
33-37588)).
4.3 Amendment No. 1 to Bylaws of Tandy Brands Accessories, Inc. (incorporated herein by reference to
Exhibit 3.3 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for the three months
ended March 31, 2002).
4.4 Form of Common Stock Certificate of Tandy Brands Accessories, Inc. (incorporated herein by
reference to Exhibit 4.2 to Tandy Brands Accessories, Inc.'s Registration Statement on Form S-1
filed on December 31, 1990 (No. 33-37588)).
4.5 Amended and Restated Rights Agreement dated as of October 19, 1999 between Tandy Brands
Accessories, Inc. and Bank Boston, N.A. (incorporated herein by reference to Exhibit 4 to Tandy
Brands Accessories, Inc.'s Current Report on Form 8-K filed on November 2, 1999).
4.6 Amendment to Amended and Restated Rights Agreement dated as of October 16, 2001 between Tandy
Brands Accessories, Inc. and Fleet National Bank (formerly Bank Boston, N.A.) (incorporated herein
by reference to Exhibit 4.7 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for
the three months ended March 31, 2002).
4.7 Form of Rights Certificate of Tandy Brands Accessories, Inc. (incorporated herein by reference to
Exhibit 4 to Tandy Brands Accessories, Inc.'s Current Report on Form 8-K filed on November 2, 1999).
5.1 Opinion of Winstead Sechrest & Minick P.C.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Winstead Sechrest & Minick P.C. (included in Exhibit 5.1).*
24.1 Power of Attorney (included on page 9).*
99.1 Tandy Brands Accessories, Inc. 2002 Omnibus Plan (incorporated herein by reference to Exhibit
10.24 to Tandy Brands Accessories, Inc.'s Quarterly Report on Form 10-Q for the three months ended
September 30, 2002).
* Filed herewith.