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As filed with the Securities and Exchange Commission on August 7, 1998
Commission File No. 333-52303
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LAZARE KAPLAN INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2728690
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
529 FIFTH AVENUE, NEW YORK NEW YORK 10017
(Address, including zip code of registrant's principal executive offices)
LAZARE KAPLAN 401(k) PLAN FOR
SAVINGS AND INVESTMENT
(Full title of the plan)
Sheldon L. Ginsberg
Executive Vice President and Chief Financial Officer
Lazare Kaplan International Inc.
529 Fifth Avenue
New York, New York 10017
(212) 972-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Warshaw Burstein Cohen Schlesinger & Kuh, LLP
555 Fifth Avenue
New York, New York 10017
(212) 984-7700
Attention: Frederick R. Cummings, Jr., Esq.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectuses is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (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.
The following documents, which have been filed by Lazare Kaplan
International Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
August 31, 1997.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 1997.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1998.
(e) The description of the Company's Common Stock set forth under Item
1 of the Company's Registration Statement on Form 8-A, as filed with the
Commission on September 21, 1973, which incorporates by reference the
description set forth in the Prospectus, contained in the Company's
Registration Statement on Form S-1 filed with the Commission August 28,
1972 (File No. 2-45510), under the caption "Description of Common Stock."
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All documents subsequently filed by the Company with the Commission
after the date of this Registration Statement pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Exchange Act and prior to the filing of a post-effective
amendment to this Registration Statement, which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be part hereof from the date of filing such documents;
provided, however, that the documents enumerated above or subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
in each year during which the offering made by this Registration Statement is in
effect and prior to the filing with the Commission of the Company's Annual
Report on Form 10-K covering such year, shall not be deemed to be incorporated
by reference in this Registration Statement or be a part hereof from and after
the filing of such Annual Report on Form 10-K.
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 that also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement contained in this Registration Statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document, which 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following states the general effect of all statutes, charter
provisions, by-laws, contracts or other arrangements under which any controlling
person, director or officer of the Company is insured or indemnified in any
manner against liability which he may incur in his capacity as such:
Section 145 of the Delaware General Corporation Law provides:
145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS:
INSURANCE.
(a) 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,
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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.
(b) 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 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 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.
(c) To the extent that a director, officer, employee or agent 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 this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(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 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) of this
section. Such determination shall be made (l) 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) if there are no such directors, or, if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) 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 he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section 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 his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have 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 him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
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(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section 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.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
The Certificate of Incorporation of the Company provides:
SEVENTH: The Corporation shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall 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.
The Certificate of Incorporation further provides:
EIGHTH: No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
his fiduciary duty as a director, provided that nothing contained herein shall
eliminate or limit the liability of a director (i) for any breach of such
director's duty of loyalty to the Corporation 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 Delaware General
Corporation Law or any amendment thereto of any successor thereto, or (iv) for
any transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of this Article EIGHTH nor the adoption of any
provision of the certificate of incorporation inconsistent with this Article
EIGHTH, shall eliminate or reduce the effect of this Article EIGHTH in respect
of any matter occurring, or any cause
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of action, suit or claim that, but for this Article EIGHTH would accrue or
arise, prior to such amendment, repeal or adoption of an inconsistent provision.
The By-Laws of the Company provide:
ARTICLE VI
INDEMNIFICATION
1. EXECUTIVE OFFICERS. The corporation shall indemnify its
executive officers and those of its subsidiaries to the same extent as they
would have been insured under the terms of an insurance policy issued to the
corporation by National Union Fire Insurance Company of Pittsburgh, Pennsylvania
for the policy year beginning September 26, 1984 and ending September 26, 1985
had such policy been in effect at the time a claim is made against any such
executive officers. The executive officers of the corporation and its
subsidiaries entitled to indemnification pursuant to this Article VI, Section l,
shall include such persons who may hold the offices, either currently or in the
future, as were covered under the aforementioned policy in the policy year
indicated.
Any indemnification pursuant to this Article VI, Section l
shall be applicable to acts or omissions that occurred prior to the adoption of
this Article VI, Section l provided they would have been covered under the
insurance policy mentioned above. The right to indemnification under this
Article VI, Section l shall continue after any person has ceased to serve in the
capacity which would have entitled him to such indemnification. Any subsequent
repeal or amendment of this Article VI, Section l or any provision hereof, which
shall have the effect of limiting, qualifying or restricting the powers or
rights of indemnification provided or permitted hereunder shall not, solely by
reason of such repeal or amendment, eliminate, restrict or otherwise affect the
right or power of the corporation to indemnify any person or affect any right of
indemnification of such person with respect to claims made prior to such repeal
or amendment.
The indemnification provided under this Article VI, Section l
shall not be deemed exclusive of any other rights to which directors, officers,
agents or employees of the corporation may be entitled under Article SEVENTH of
the Certificate of Incorporation of the corporation, or any agreement, vote of
the stockholders or disinterested directors, or otherwise.
The corporation shall have the right to impose, as conditions
to any indemnification provided or permitted pursuant to this Article VI,
Section l, such reasonable requirements and conditions as the Board of Directors
or stockholders may deem appropriate in each specific case and circumstance,
including but not limited to (i) that any counsel representing the person to be
indemnified in connection with the defense or settlement of any action shall be
selected by the corporation, subject to the approval of the person to be
indemnified, which consent shall not be unreasonably withheld, (ii) that the
corporation shall have the right, at its option, to assume and control the
defense or settlement of any claim or proceeding made, initiated or threatened
against the person to be indemnified, and (iii) that the corporation shall be
subrogated, to the extent of any payments made by way of indemnification, to all
of the indemnified person's right of recovery, and that the person to be
indemnified shall execute all writings and do everything necessary to assure
such rights of subrogation to the corporation.
2. OUTSIDE DIRECTORS. The corporation shall indemnify its
outside (i.e. non-officer) directors and those of its subsidiaries to the same
extent as they would have been insured under the terms of an insurance policy
issued to the corporation by National Union Fire Insurance Company of
Pittsburgh, Pennsylvania, for the policy year beginning September 26, 1984 and
ending September 26, 1985 had such policy been in effect at the time a claim is
made against any such outside director. The outside directors of the corporation
and its subsidiaries entitled to indemnification pursuant to this Article VI,
Section 2 shall
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include such persons who may hold the offices, either currently or in the
future, as were covered under the aforementioned policy in the policy year
indicated.
Any indemnification pursuant to this Article VI, Section 2
shall be applicable to acts or omissions that occurred prior to the adoption of
this Article VI, Section 2 provided they would have been covered under the
insurance policy mentioned above. The right to indemnification under Article VI,
Section 2 shall continue after any person has ceased to serve in the capacity
which would have entitled him to such indemnification. Any subsequent repeal or
amendment of this Article VI, Section 2 or any provision hereof, which shall
have the effect of limiting, qualifying or restricting the powers or rights of
indemnification provided or permitted hereunder shall not, solely by reason of
such repeal or amendment, eliminate, restrict or otherwise affect the right or
power of the corporation to indemnify any person or affect any right of
indemnification of such person with respect to claims made prior to such repeal
or amendment.
The indemnification provided under this Article VI, Section 2
shall not be deemed exclusive of any other rights to which directors, officers,
agents or employees of the corporation may be entitled under Article SEVENTH of
the Certificate of Incorporation of the corporation, or any agreement, vote of
the stockholders or disinterested directors, or otherwise.
The corporation shall have the right to impose, as conditions
to any indemnification provided or permitted pursuant to Article VI, Section 2,
such reasonable requirements and conditions as the Board of Directors or
stockholders may deem appropriate in each specific case and circumstance,
including but not limited to (i) that any counsel representing the person to be
indemnified in connection with the defense or settlement of any action shall be
selected by the corporation, subject to the approval of the person to be
indemnified, which consent shall not be unreasonably withheld, (ii) that the
corporation shall have the right, at its option, to assume and control the
defense or settlement of any claim or proceeding made, initiated or threatened
against the person to be indemnified, and (iii) that the corporation shall be
subrogated, to the extent of any payments made by way of indemnification, to all
of the indemnified person's right of recovery, and that the person to be
indemnified shall execute all writings and do everything necessary to assure
such rights of subrogation to the corporation.
3. EXECUTIVE OFFICERS AND DIRECTORS PRIOR TO APRIL 9, 1984.
The corporation shall indemnify its directors and executive officers and those
of its subsidiaries who were in office prior to April 9, 1984 to the same extent
as they would have been insured under the terms of an insurance policy issued to
the corporation by National Union Fire Insurance Company of Pittsburgh,
Pennsylvania for the policy year beginning September 26, 1984 and ending
September 26, 1985 had such policy been in effect at the time a claim is made
against any such director or officer. The directors and officers of the
corporation and its subsidiaries entitled to indemnification pursuant to this
Article VI, Section 3 shall include such persons who held the offices as were
covered under the aforementioned policy in the policy year indicated.
Any indemnification pursuant to this Article VI, Section 3
shall be applicable to acts or omissions that occurred prior to the adoption of
this Article VI, Section 3, provided they would have been covered under the
insurance policy mentioned above. The right to indemnification under this
Article VI, Section 3 shall continue after any person has ceased to serve in the
capacity which would have entitled him to such indemnification hereunder. Any
subsequent repeal or amendment of this Article VI, Section 3 or any provision
hereof, which shall have the effect of limiting, qualifying or restricting the
powers or rights of indemnification provided or permitted hereunder shall not,
solely by reason of such repeal or amendment, eliminate, restrict or otherwise
affect the right or power of the corporation to indemnify any person or affect
any right of indemnification of such person with respect to claims made prior to
such repeal or amendment.
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The indemnification provided under this Article VI, Section 3
shall not be deemed exclusive of any other rights to which directors, officers,
agents or employees of the corporation may be entitled under Article SEVENTH of
the Certificate of Incorporation of the corporation, or any agreement, vote of
the stockholders or disinterested directors, or otherwise. The corporation shall
have the right to impose, as conditions to any indemnification provided or
permitted pursuant to this Article VI, Section 3, such reasonable requirements
and conditions as the Board of Directors or stockholders may deem appropriate in
each specific case and circumstance, including but not limited to (i) that any
counsel representing the person to be indemnified in connection with the defense
or settlement of any action shall be selected by the corporation, subject to the
approval of the person to be indemnified, which consent shall not be
unreasonably withheld, (ii) that the corporation shall have the right, at its
option, to assume and control the defense or settlement of any claim or
proceeding made, initiated or threatened against the person to be indemnified,
and (iii) that the corporation shall be subrogated, to the extent of any
payments made by way of indemnification, to all of the indemnified person's
right of recovery, and that the person to be indemnified shall execute all
writings and do everything necessary to assure such rights of subrogation to the
corporation.
4. DIRECTORS. The corporation shall indemnify its existing
directors and those of its subsidiaries to the same extent as they would have
been insured under the terms of an insurance policy issued to the corporation by
National Union Fire Insurance Company of Pittsburgh, Pennsylvania for the policy
year beginning September 26, 1984 and ending September 26, 1985 had such policy
been in effect at the time a claim is made against any such director. The
directors of the corporation and its subsidiaries entitled to indemnification
pursuant to this Article VI, Section 4 shall include such persons who may hold
the offices, either currently or in the future, as were covered under the
aforementioned policy in the policy year indicated.
Any indemnification pursuant to this Article VI, Section 4
shall be applicable to acts or omissions that occurred prior to the adoption of
this Article VI, Section 4 provided they would have been covered under the
insurance policy mentioned above. The right to indemnification under this
Article VI, Section 4 shall continue after any person has ceased to serve in the
capacity which would have entitled him to such indemnification hereunder. Any
subsequent repeal or amendment of this Article VI, Section 4 or any provision
hereof, which shall have the effect of limiting, qualifying or restricting the
powers or rights of indemnification provided or permitted hereunder shall not,
solely by reason of such repeal or amendment, eliminate, restrict or otherwise
affect the right or power of the corporation to indemnify any person or affect
any right of indemnification of such person with respect to claims made prior to
such repeal or amendment.
The indemnification provided under this Article VI, Section 4
shall not be deemed exclusive of any other rights to which directors, officers,
agents or employees of the corporation may be entitled under Article SEVENTH of
the Certificate of Incorporation of the corporation, or any agreement, vote of
the stockholders or disinterested directors, or otherwise.
The corporation shall have the right to impose, as conditions
to any indemnification provided or permitted pursuant to this Article VI,
Section 4, such reasonable requirements and conditions as the Board of Directors
or stockholders may deem appropriate in each specific case and circumstance,
including but not limited to (i) that any counsel representing the person to be
indemnified in connection with the defense or settlement of any action shall be
selected by the corporation, subject to the approval of the person to be
indemnified, which consent shall not be unreasonably withheld, (ii) that the
corporation shall have the right, at its option, to assume and control the
defense or settlement of any claim or proceeding made, initiated or threatened
against the person to be indemnified, and (iii) that the corporation shall be
subrogated, to the extent of any payments made by way of indemnification, to all
of the indemnified person's right of recovery, and that the person to be
indemnified shall execute all writings and do everything necessary to assure
such rights of subrogation to the corporation.
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5. SEVERABILITY. If any of the provisions of this Article VI,
or any part hereof, is hereafter construed to be invalid or unenforceable, the
same shall not affect the remaining provisions of this Article VI, which shall
remain in full effect without regard to the invalid portion or portions.
In addition, the By-Laws provide that the Company has the authority to
obtain liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit No. Description
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4 Instruments defining the rights of security holders,
including indentures
4.1(a) (i) Certificate of Incorporation of the
Company, as amended (incorporated by
reference to Exhibit 3(a) to Company's
Annual Report on Form 10-K for the fiscal
year ended May 31, 1987 filed with the
Commission on August 26, 1987, as amended
January 14, 1988).
(ii) Certificate of Amendment of the Certificate
of Incorporation filed with the Secretary of
State of the State of Delaware on November
1, 1990 (incorporated by reference to
Exhibit 3(b) to Company's Annual Report on
Form 10-K for the fiscal year ended May 31,
1992 filed with the Commission on August 28,
1992).
(iii) Certificate of Amendment of the Certificate
of Incorporation filed with the Secretary of
State of the State of Delaware on November
6, 1997 (incorporated by reference to
Exhibit 4.1(a)(iii) to Company's
Registration Statement for the Lazare Kaplan
International Inc. 1997 Long Term Stock
Incentive Plan on Form S-8 filed with the
Commission on November 14, 1997).
4.1(b) Certificate of Designations of Series A Junior
Participating Preferred Stock filed with the
Secretary of State of the State of Delaware on
November 6, 1997 (incorporated by reference to
Exhibit 4.1(b) to the Company's Registration on Form
S-8 filed with the Commission on November 14, 1997.)
4.2 By-Laws of the Company, as currently in effect
(incorporated by reference to Exhibit 3(ii) to
Company's Registration Statement on Form S-1 filed
with the Commission on August 28 1972).
4.3 Form of certificate representing shares of the
Company's Common Stock (incorporated by reference to
Exhibit 4(a) to Amendment No. 1 to Registration
Statement on Form S-2 filed with the Commission on
October 4, 1990 ).
4.4 (a) The Lazare Kaplan International Inc. 401(k) Plan
for Savings and Investment (incorporated by
reference to Exhibit 4.4(a) to the Company's
Registration Statement on Form S-8 filed with
the Commission on May 11, 1998).
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(b) Amendment to The Lazare Kaplan International
Inc. 401(k) Plan for Savings and Investment
dated January 2, 1998.*
(c) Adoption Agreement, dated September 25, 1989
(incorporated by reference to Exhibit 4.4(b) to
the Company's Registration Statement on Form S-8
filed with the Commission on May 11, 1998).
(d) Adoption Agreement, dated March 28, 1998
(incorporated by reference to Exhibit 4.4(c) to
the Company's Registration Statement on Form S-8
filed with the Commission on May 11, 1998).
5 Opinion re legality
5.1 Opinion of Warshaw Burstein Cohen Schlesinger & Kuh,
LLP (incorporated by reference to Exhibit 5.1 to the
Company's Registration Statement on Form S-8 filed
with the Commission on May 11, 1998).
5.2 (i) Internal Revenue Service Determination
Letter dated July 12, 1994 (incorporated by
reference to Exhibit 5.2(i) to the Company's
Registration Statement on Form S-8 filed
with the Commission on May 11, 1998).
(ii) Commonwealth of Puerto Rico Department of
Treasury, Bureau of Income Tax Letter dated
October 11, 1994. (incorporated by reference
to Exhibit 5.2(ii) to the Company's
Registration Statement on Form S-8 filed
with the Commission on May 11, 1998).
15 Letter on unaudited interim financial information -
not applicable
23 Consent of experts and counsel
23.1 Consent of Warshaw Burstein Cohen Schlesinger & Kuh,
LLP (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP*
24 Power of attorney (contained in the signature pages to the
Company's Registration Statement on Form S-8 filed with the
Commission on May 11, 1998).
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*Filed herewith
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
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(i) To include any prospectus required by Sections 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 the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (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 the
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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-10
<PAGE>
<PAGE>
SIGNATURES
The Registrant. 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 New York, State of New York on August 7, 1998.
LAZARE KAPLAN INTERNATIONAL INC.
By: /s/ Sheldon L. Ginsberg
-------------------------
Sheldon L. Ginsberg,
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
* Chairman of the Board August 7, 1998
- ------------------------------------ of Directors
Maurice Tempelsman
* Vice Chairman of the August 7, 1998
- ------------------------------------ Board of Directors
Leon Tempelsman (pricipal executive
officer)
/s/ Lucien Burstein Director August 7, 1998
- -------------------
Lucien Burstein
* Director August 7, 1998
- ------------------------------------
Myer Feldman
* Director August 7, 1998
- ------------------------------------
Michael W. Butterwick
/s/ Sheldon L. Ginsberg Director, Executive Vice August 7, 1998
- ----------------------- President and Chief Financial
Sheldon L. Ginsberg Officer (principal financial and
accounting officer)
* Director August 7, 1998
- ------------------------------------
Robert Speisman
</TABLE>
II-11
<PAGE>
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees have duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York on August 7, 1998.
LAZARE KAPLAN 401(K) PLAN
FOR SAVINGS AND INVESTMENT
By: /s/ Sheldon L. Ginsberg
------------------------
Sheldon L. Ginsberg
Trustee
By: *
-----------------------
Leon Tempelsman
Trustee
By: *
-----------------------
Robert Speisman
Trustee
*By:/s/ Lucien Burstein
-------------------
Lucien Burstein
(as attorney-in-fact for
such person as indicated)
II-12
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------- -----------
<S> <C>
4.4 (b) Amendment to The Lazare Kaplan International Inc. 401(k)
Plan for Savings and Investment dated January 2, 1998.*
23.2 Consent of Ernst & Young LLP
</TABLE>
<PAGE>
<PAGE>
EXHIBIT 4.4(b)
LAZARE KAPLAN INTERNATIONAL INC.
UNANIMOUS WRITTEN CONSENT
OF THE
EXECUTIVE COMMITTEE
OF THE
BOARD OF DIRECTORS
The undersigned, being all of the members of the Executive
Committee of the Board of Directors of Lazare Kaplan International Inc., a
Delaware corporation (the "Corporation"), hereby consent, pursuant to Section
141 of the Delaware General Corporation Law and Article II Section 6 of the
Bylaws of the Corporation, to the following resolutions taking or authorizing
the actions specified therein:
WHEREAS, Section 11.1 of the Lazare Kaplan 401(k)
Plan for Savings and Investments (the "Plan") provides that
the Corporation has the right from time to time to amend the
Plan by action of the Board of Directors (the "Board"); and
WHEREAS, the Executive Committee of the Board has
been delegated by resolution the power to exercise the above
right; and
WHEREAS, the Corporation wishes to amend the Plan so
that (i) the Corporation is authorized to make its Matching
Contributions (such term and all other terms used herein,
unless otherwise specifically defined herein, to have the
meanings set forth in the Plan, as hereby amended) in shares
of the Corporation's common stock, par value $1.00 (the
"Common Stock"), (ii) Participants have the option to elect to
invest Matching Contributions for 1997 Plan Year and
thereafter in Common Stock, and (iii) as soon as
administratively feasible, Participants have the option to
elect to invest Account Balances in Common Stock;
NOW, THEREFORE, be it,
RESOLVED, that the Plan is amended as follows:
1. Section 2 is amended by inserting the following
after subsection 2.16:
"2.17 'Employer Stock' shall mean the Common Stock of
the Company, par value $1.00 or any capital stock or
other securities that may at any time be issued in
substitution thereof."
2. Section 6.1 is amended by replacing in its entirety
subparagraph 6.1(f)(ii)(f) with the following:
" 'Matching Contribution' shall mean the
Contributions made in cash or Employer Stock to this
or any other defined contribution plan on behalf of a
Participant on account of an Employee After Tax
Contribution made by such Participant or on account
of a Participant's Elective Deferrals under a plan
maintained by the Company."
3. Section 7.3 shall be amended by inserting the
following immediately prior to the last sentence thereof:
<PAGE>
<PAGE>
"Effective with respect to the 1997 Plan
Year and Plan Years thereafter, in addition to the
Funds made available pursuant to the above, each
Participant shall have the option to direct that all
of the Company's Matching Contribution allocated to
his account for such Plan Year be invested in
Employer Stock. Such election shall be made on or
before the date the Matching Contribution for such
Plan Year is delivered to the Plan and allocated to
the Participant's Account and shall be made in
writing on a form provided by the Plan Administrator.
If a Participant fails to make a timely election it
is assumed that such Participant has elected to have
the Company's Matching Contribution for such Plan
Year invested in accordance with his most recent
prior investment directions.
4. Section 7 is amended by adding the following as
Section 7.11 at the end thereof:
"7.11 Voting and Exercising Other Rights of Employer
Stock:
(a) Each Participant (or, in the event of
his death, his Beneficiary) shall have the right to
direct the Trustee as to the manner in which whole
and partial shares of Employer Stock allocated to his
Accounts as of the record date are to be voted on
each matter before an annual or special shareholders'
meeting. In a timely manner, before each such meeting
of shareholders, the Trustee shall furnish to each
Participant (or Beneficiary) a copy of the proxy
solicitation material, together with a form
requesting directions on how such shares of Employer
Stock allocated to such Participant's Accounts shall
be voted on each such matter. Upon timely receipt of
such directions, the Trustee shall on each such
matter vote as directed the number of shares
(including fractional shares) of Employer Stock
allocated to such Participant's Accounts, and the
Trustee shall have no discretion in such matter. The
directions received by the Trustee from Participants
shall be held by the Trustee in confidence and shall
not be divulged or released to any person, including
officers or employees of the Company. The Trustee
shall vote allocated shares for which it has not
received direction and unallocated shares of Employer
Stock in the same proportion as directed shares are
voted, and shall have no discretion in such matter.
(b) If a tender or exchange offer is
commenced for Employer Stock:
(i) The Trustee shall distribute in
a timely manner to each Participant (or
Beneficiary) such information as is
distributed to holders of Employer Stock in
connection with the tender or exchange
offer.
(ii) All Employer Stock held by the
Trustee in Participants' Accounts shall be
tendered or not tendered by the Trustee in
accordance with directions it receives from
Participants (or Beneficiaries). Each
Participant (or Beneficiary) shall be
entitled to direct the Trustee with respect
to the tender of such Employer Stock
allocated to his account. The instructions
received by the Trustee from Participants
(or Beneficiaries) shall be held by the
Trustee in confidence and shall not be
divulged or released to any person,
including officers or employees of the
Company.
(iii) The Trustee shall not tender
Employer Stock allocated to Participants'
Accounts with respect to which directions by
Participants (or Beneficiaries) are not
received or Employer Stock held by the
Trustee that is not allocated to
Participants' Accounts.
(c) The Trustee shall make no
recommendations regarding the manner of exercising
any rights under this paragraph, including whether
or not such rights should be exercised."
2
<PAGE>
<PAGE>
5. Section 8.2 is amended by inserting the following
phrase at the end thereof:
"(including Employer Stock)."
6. Section 8.8 is amended by replacing the dollar
amount "$3500" in the second sentence of the second paragraph
with the dollar amount "$5000".
7. Section 8.11 is amended by replacing subparagraph
(a) of Paragraph (c) with the following:
"(a) General Rule.
Non 5-percent owners. Any Participant who is
a non 5-percent owner may elect one of the following:
(1) the required beginning date is April 1
of the calendar year following the following
the calendar year in which the Participant
attains age 70 1/2 (2) the required
beginning date is April 1 of the calendar
year following the later of: (a)the calendar
year in which the Participant attains age 70
1/2, or (ii) the calendar year in which the
Participant retires.
5-percent owners. The required beginning
date of any Participant who is a 5-percent owner (as
is described in section 416(i)) is the April 1 of the
calendar year following the calendar year in which
thew Participant attains age 70 1/2"
8. Section 9.2 is amended by adding the following at
the end of subsection 9.2(a):
"Notwithstanding any provision to the contrary
herein, in accordance with the terms of Section 7 the
Plan's assets may be invested in Employer Stock. The
Trustee may in accordance with Section 408(e) of
ERISA and Section 7 acquire, hold and dispose of
Employer Stock as an asset of the Plan, and the
Trustee shall vote such shares of Employer Stock in
the manner set forth in Section 7.11 of the Plan,
provided, however, that no time may more than 10% of
the market value of the asset of the Plan be invested
in Employer Stock."
RESOLVED, that the Adoption Agreement is amended as
follows:
1. Section 3 of the Adoption Agreement is amended by
adding the following at the end of subsection B:
"As soon as administratively feasible a eighth Fund
shall be available. Such fund shall be invested in Employer
Stock."
2. Section 3 of the Adoption Agreement is amended by
adding the following at the end of subsection D:
"Notwithstanding any provision herein to the
contrary, if a Participant elects to invest any
portion of his Accounts in Employer Stock (other than
the initial election to invest the Company's Matching
Contribution in Employer Stock) or change any
investment with respect to Employer Stock, the
proceeds from such investment or change shall be net
of any transaction costs (including but not limited
to brokerage fees)."
3
<PAGE>
<PAGE>
RESOLVED, that a Registration Statement on Form S-8
(the "Registration Statement") be filed with the Securities
and Exchange Commission under the Securities Act of 1933 with
regard to the registration of Employer Stock to be purchased,
held, or sold by the Plan, along with the participation
interests in the Plan, in such form as shall be approved by
the proper officers of the Corporation upon the advice of
counsel; and
RESOLVED, that the officers and directors of the
Corporation be, and each of them hereby is, authorized,
empowered and directed to execute and file the Registration
Statement and one or more amendments (including post-effective
amendments) thereto on behalf of the Corporation and on behalf
of the Plan with the Securities and Exchange Commission and to
make such changes therein as may be approved by the officers
executing the same, with the advice of counsel, such approval
to be conclusively evidenced by their execution thereof; and
RESOLVED, that Sheldon L. Ginsberg be and he hereby
is appointed as agent of the Corporation and the Plan for
service of process in connection with the Registration
Statement, with full power and authority to act for and on
behalf of the Corporation and the Plan in accordance with the
applicable rules and regulations of the Securities and
Exchange Commission; and
RESOLVED, that the agent of the Corporation for
service of process in connection with the Registration
Statement be, and he hereby is, appointed a true and lawful
attorney-in-fact for the Corporation and the Plan to execute,
on behalf of the Plan, the Registration Statement and any
amendments (including post-effective amendments) thereto and
to file the same with the Securities and Exchange Commission;
and
RESOLVED, that the directors and officers of the
Corporation be, and each of them hereby is authorized,
empowered and directed to take such further action and to
execute and deliver such additional documents as may be
necessary or desirable in order to implement the intents and
accomplish the purposes of the foregoing resolutions.
DATED: January 2, 1998
/s/Maurice Tempelsman
---------------------
MAURICE TEMPELSMAN
/s/Leon Tempelsman
-------------------
LEON TEMPELSMAN
4
<PAGE>
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No. 1 to the
Registration Statement (Form S-8) pertaining to the Lazare Kaplan 401(k) Plan
for Savings and Investment of our report dated July 8, 1997, with respect to the
consolidated financial statements of Lazare Kaplan International Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
May 31, 1997, filed with the Securities and Exchange Commission.
We also consent to the incorporation by reference therein of our report dated
August 26, 1997, with respect to the financial statement schedule of Lazare
Kaplan International Inc. included in its Annual Report (Form 10-K) for the year
ended May 31, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
New York, New York
August 7, 1998
5
