<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1997.
REGISTRATION NO. _____________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
=========================
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
=================
MICHAEL ANTHONY JEWELERS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2910285
(STATE OR OTHER JURISDICTION OF I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION IDENTIFICATION NO.)
115 SOUTH MACQUESTEN PARKWAY, MOUNT VERNON, NEW YORK 10550
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
==================
1993 NON-EMPLOYEE DIRECTORS' STOCK OPTION
(FULL TITLE OF PLAN)
===================
ALLAN CORN
MICHAEL ANTHONY JEWELERS, INC.
115 SOUTH MACQUESTEN PARKWAY, MOUNT VERNON, NEW YORK 10550
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(914) 699-0000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT OF SERVICE)
____________ _________
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR
SERVICE, SHOULD ALSO BE SENT TO:
M. FRANCES DURDEN, ESQ.
MICHAEL ANTHONY JEWELERS, INC.
115 SOUTH MACQUESTEN PARKWAY
MOUNT VERNON, NEW YORK 10550
(914) 699-0000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Title to securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered (1) offering price per aggregate offering registration fee
share (2) price (2)
- ---------------------------------------------- --------------------- --------------------- ------------------
<S> <C> <C> <C> <C> <C>
Common stock, par
value $.001 per share 250,000 shares $4.125 $1,031,250 $312.50
- -------------------------------------------------------------------------------------------------------------
<FN>
(1) Represents the aggregate number of shares of Common Stock to be issued upon
the exercise of stock options granted under the 1993 Non-Employee Directors'
Stock Option..
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee, on the
basis of the average of the high and low prices on June 6, 1997.
</TABLE>
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The document(s) containing the information called for in Part I of Form
S-8 will be sent or given to directors awarded stock options under the Michael
Anthony Jewelers, Inc. 1993 Non-Employee Directors' Stock Option Plan, as
amended (the "Plan"), adopted by Michael Anthony Jewelers, Inc. (the "Company")
and is not being filed with or included in this Form S-8 in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with, or furnished to, the Commission,
and the information included therein, are incorporated herein by reference.
(1) The Company's Annual Report on Form 10-K for the year ended
February 1, 1997 (the "1997 Annual Report").
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 3, 1997.
(3) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by
the 1997 Annual Report.
(4) The description of the Common Stock contained on the Company's
Form 8-A dated December 9, 1986 filed under the Exchange Act.
(5) Information concerning the Plan, including the options
outstanding and the exercises, prices and expiration of
options, which will be included in the future, either in the
Company's Proxy Statement or Annual Reports on Form 10-K.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which either indicates that all securities offered
hereby have been sold or deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference and to be part hereof from the
date of filing of such documents.
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<PAGE> 3
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 subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
The Company hereby undertakes to provide without charge to each person
who has received a copy of the document(s) containing the information called for
in Part I of this Registration Statement, upon the written or oral request of
any such person, a copy of the Company's Annual Report to Stockholders for its
last fiscal year and a copy of any or all documents that have been or may be
incorporated by reference into this Registration Statement, other than exhibits
to such documents (unless such exhibits are incorporated by reference). Requests
for such information should be addressed to Michael Anthony Jewelers, Inc., 115
South MacQuesten Parkway, Mount Vernon, New York 10550, Attention: Secretary, or
made by telephone at (914) 699-0000.
ITEM 4. DESCRIPTION OF SECURITIES
NOT APPLICABLE
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements and related statement schedules
incorporated in this Registration Statement on Form S-8 by reference to the
Company's Annual Report on Form 10-K for the year ended February 1, 1997, have
been audited by Deloitte & Touche, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon such firm given upon their authority as experts in accounting
and auditing.
Certain matters with respect to legality in connection with the sale of
the shares of Common Stock offered hereby are being passed upon for the Company
by M. Frances Durden, Esq. General Counsel for the Company, 115 South MacQuesten
Parkway, Mount Vernon, New York 10550. Ms. Durden is an executive officer of the
Company and beneficially owns 1,000 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATIONS OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware permits
indemnification of directors, officers and employees of a corporation under
certain conditions and subject to certain limitations. Article VI of the
Company's By-Laws provides for the indemnification, to the extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, directors,
officers, employees or agents of the Company against expenses reasonably
incurred with respect to civil, criminal, administrative or investigative
actions, suits or proceedings (except actions by or in the right of the
Company), provided that such director, officer, employee or agent, with respect
to civil mattes, acted in good faith and in a
II-2
<PAGE> 4
manner reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Respecting actions
or suits by or in the right of the Company, the By-Laws provide for the
indemnification of directors, officers, employees or agents of the Company
against expenses reasonably incurred in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
Company; provided, however no indemnification may be made in respect of any such
claim, issue or matter as to which such person shall have been adjudged to be
liable for the negligence or misconduct in the performance of his or her duty to
the Company, unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
that, despite such adjudication and in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to such indemnity as such
court deems proper.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
The Exhibits to this Registration Statement are listed in the Exhibit
Index on page II-9 of this Registration Statement which Exhibit Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
(1) The Company hereby undertakes:
(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 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, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
II-3
<PAGE> 5
(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)(a)(i) and (1)(a)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(b) 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.
(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) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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, therefor, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Mount Vernon, State of New York, on the 9th day of
June, 1997.
MICHAEL ANTHONY JEWELERS, INC.
By: /s/ Michael W. Paolercio
------------------------
Michael W. Paolercio, Co-Chairman
of the Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael W. Paolercio, Fredric R.
Wasserspring and M. Frances Durden, his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, and hereby ratifies and confirms all his said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Michael W. Paolercio Co-Chairman of the Board and June 9, 1997
- --------------------------- Chief Executive Officer
Michael W. Paolercio
/s/Anthony Paolercio, Jr. Co-Chairman of the Board and June 9, 1997
- ------------------------ Executive Vice President
Anthony Paolercio, Jr.
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Fredric R. Wasserspring President, Chief Operating June 9, 1997
- --------------------------- Officer and Director
Fredric R. Wasserspring
/s/ Allan Corn Chief Financial Officer June 9, 1997
- -------------- Senior Vice President and
Allan Corn Director (Principal Accounting
Officer)
/s/ Michael A. Paolercio Senior Vice President, Treasurer June 9, 1997
- ------------------------ and Director
Michael A. Paolercio
/s/ Michael Wager Director June 9, 1997
- -----------------
Michael Wager
/s/ David Harris Director June 9, 1997
- ----------------
David Harris
/s/ Donald Miller Director June 9, 1997
- -----------------
Donald Miller
</TABLE>
II-6
<PAGE> 8
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Mount Vernon, State of
New York as of the 9th day of June, 1997.
MICHAEL ANTHONY JEWELERS, INC.
1993 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
By: /s/ Michael Wager
------------------
Michael Wager
Chairman, Compensation Committee
<PAGE> 9
EXHIBITS INDEX
Exhibit No. Description
- ----------- -----------
4 1993 Non-Employee Directors'
Stock Option Plan as amended
5 Opinion of M. Frances Durden, Esq.
23.1 Consent of Deloitte & Touche
23.2 Consent of M. Frances Durden, Esq.
(See Exhibit 5)
24 Power of Attorney
(Included on signature page)
<PAGE> 1
Exhibit 4
1993 NON-EMPLOYEE DIRECTORS'
STOCK OPTION PLAN OF
MICHAEL ANTHONY JEWELERS, INC.
1. PURPOSE OF THE PLAN. This 1993 Non-Employee Directors' Stock
Option Plan of Michael Anthony Jewelers, Inc. adopted on this 22nd day of
April 1993, is intended to encourage directors of the Company who are not
officers or key employees of the Company or any of its Subsidiaries to acquire
or increase their ownership of common stock of the Company. The opportunity so
provided is intended to foster in participants an incentive to put forth
maximum effort for the continued success and growth of the Company and its
Subsidiaries, to aid in retaining individuals who put forth such efforts, and
to assist in attracting the best available individuals to the Company in the
future.
2. DEFINITIONS. When used herein, the following terms shall have the
meaning set forth below:
2.1 "BOARD" means the Board of Directors of Michael Anthony
Jewelers, Inc.
2.2 "CHANGE IN CONTROL" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act (as in effect on the date the Plan is adopted by the
Board), whether or not the Company is then subject to such reporting
requirement; provided, that, without limitation, such a Change in
Control shall be deemed to have occurred if:
(a) any "person" (as defined in Section 13(d)
and 14(d) of the
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<PAGE> 2
Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing forty percent (40%)
or more of the combined voting power of the Company's then
outstanding securities; provided, however, that a Change in
Control shall not be deemed to occur under this clause (a) by
reason of the acquisition of securities by the Company or an
employee benefit plan (or any trust funding such a plan)
maintained by the Company, or by reason of the new issuance of
securities directly by the Company; or
(b) during any period of two (2) consecutive years
(not including any period prior to the adoption of this Plan)
there shall cease to be a majority of the Board comprised of
Continuing Directors; or
(c) (i) the stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty-one
percent (51%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
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<PAGE> 3
immediately after such merger or consolidation, or (ii) the
stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
2.3 "CODE" means the Internal Revenue Code of 1986, as in
effect at the time of reference, or any successor revenue code which
may hereafter be adopted in lieu thereof, and any reference to any
specific provisions of the Code shall refer to the corresponding
provisions of the Code as it may hereafter be amended or replaced.
2.4 "COMMITTEE" means the Stock Option Committee of the Board
or any other committee appointed by the Board which is invested by the
Board with responsibility for the administration of the Plan and whose
members meet the requirements for eligibility to serve as set forth in
Rule 16b-3 and in the Plan.
2.5 "COMPANY" means Michael Anthony Jewelers, Inc.
2.6 "CONTINUING DIRECTORS" means individuals who at the
beginning of any period of two (2) consecutive years (not including any
period prior to the adoption of this Plan) constitute the Board and any
new director(s) whose election by the Board or nomination for election
by the Company's stockholders was approved by a vote of at least a
majority of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved.
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<PAGE> 4
2.7 "DIRECTORS" means directors who serve on the Board and
who are not officers or key employees of the Company or any of its
Subsidiaries.
2.8 "ERISA" means the Employee Retirement Income Security
Act of 1974, as in effect at the time of reference, or any successor
law which may hereafter be adopted in lieu thereof, and any reference
to any specific provisions of ERISA shall refer to the corresponding
provisions of ERISA as it may hereafter be amended or replaced.
2.9 "EXCHANGE ACT" means the Securities Act of 1934, as in
effect at the time of reference, or any successor law which may
hereafter be adopted in lieu thereof, and any reference to any
specific provisions of the Exchange Act shall refer to the
corresponding provisions of the Exchange Act as it may be amended or
replaced.
2.10 "FAIR MARKET VALUE" means with respect to the Shares,
the closing price of the Shares on the American Stock Exchange or
other national securities exchange, on the last business day prior to
the date on which the value is to be determined, as reported in the
Wall Street Journal or such other source of quotations for, or report
of trading of, the Shares as the Committee may reasonably select from
time to time; provided, however, if the Shares are not then traded on
such an exchange, but are then traded on the over-the-counter market,
Fair Market Value means the mean between the high and low bid and
asked prices for the Shares on the over-the-counter market on the
last business day prior to the date on which the value is to be
determined (or the next preceding day on which sales occurred if
there
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<PAGE> 5
were no sales on such date); provided further, however, if no sales
have occurred in the over-the-counter market during the three week
period preceding the date on which the value is to be determined, Fair
Market Value means the average of the mean between the high and the low
bid and asked prices for the Shares on the over-the-counter market for
the three (3) month period ending on the last business day prior to the
date on which the value is to be determined; provided further, however,
if the Shares are reported in the National Market List of the National
Association of Securities Dealers, Inc. Automated Quotation System, the
closing price shall be substituted above for the mean of the high and
low bid and asked prices.
2.11 "OPTION" means the right to purchase the number of
Shares specified by the Plan at a price and for a term fixed by the
Plan, and subject to such other limitations and restrictions as the
Plan and the Committee may impose.
2.12 "OPTION AGREEMENT" means a written agreement in such
form as may be, from time to time, hereafter approved by the
Committee, which shall be duly executed by the Company and the
Director and which shall set forth the terms and conditions of an
Option under the Plan.
2.13 "PLAN" means the 1993 Non-Employee Directors' Stock
Option Plan of Michael Anthony Jewelers, Inc.
2.14 "REGULATION T" means Part 220, chapter II, title 12 of
the Code of Federal Regulations, issued by the Board of Governors of
the Federal Reserve System pursuant to the Exchange Act, as amended
from time to time, or any successor regulation which may hereafter be
adopted in lieu thereof.
- 5 -
<PAGE> 6
2.15 "RULE 16B-3" means Rule 16b-3 of the General Rules and
Regulations of the Securities and Exchange Commission as in effect at
the time of reference, or any successor rules or regulations which
may hereafter be adopted in lieu thereof, and any reference to any
specific provisions of Rule 16b-3 shall refer to the corresponding
provisions of Rule 16b-3 as it may hereafter be amended or replaced.
2.16 "SHARES" means shares of the Company's $.001 par value
common stock or, if by reason of the adjustment provisions contained
herein, any rights under an Option under the Plan pertain to any
other security, such other security.
2.17 "SUBSIDIARY" OR "SUBSIDIARIES" means any corporation or
corporations other than the Company in an unbroken chain of
corporations beginning with the Company if each of the corporations
other than the last corporation in the unbroken chain owns stock
possessions fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in
such chain.
2.18 "SUCCESSOR" means the legal representative of the
estate of a deceased Director or the person or persons who shall
acquire the right to exercise or receive an Option by bequest or
inheritance or by reason of the death of the Director.
2.19 "TERM" means the period during which a particular
Option may be exercised.
3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon
the exercise of Options to be granted from time to time under the Plan, an
aggregate of Two Hundred Fifty Thousand (250,000) Shares, which Shares may be,
in whole or in part, as the Board shall from time to time determine,
authorized but unissued Shares, or issued Shares which shall
- 6 -
<PAGE> 7
have been reacquired by the Company. Any Shares subject to issuance upon
exercise of Options but which are not issued because of a surrender, lapse,
expiration or termination of any such Option prior to issuance of the Shares
shall once again be available for issuance in satisfaction of Options.
4. ADMINISTRATION OF THE PLAN. The Board shall appoint the Committee,
which shall consist of not less than two (2) disinterested directors as
defined in Rule 16b-3. Subject to the provisions of the Plan, the Committee
shall have full authority, in its discretion, to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan, and
generally to interpret and determine any and all matters whatsoever relating
to the administration of the Plan and the granting of Options hereunder. The
Board may, from time to time, appoint members to the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee shall select one of its
members as its chairman and shall hold its meetings at such times and places
as it shall deem advisable. A majority of its members shall constitute a
quorum. Any action of the Committee may be taken by a written instrument
signed by all of the members, and any action so taken shall be fully as
effective as if it had been taken by a vote of a majority of the members at a
meeting duly called and held. The Committee shall make such rules and
regulations for the conduct of its business as it shall deem advisable and
shall appoint a Secretary who shall keep minutes of its meetings and records
of all action taken in writing without a meeting. No member of the Committee
shall be liable, in the absence of bad faith, for any act or omission with
respect to his or her service on the Committee.
- 7 -
<PAGE> 8
5. GRANT OF OPTIONS.
5.1 EXISTING DIRECTORS. Each Director who is a Director on
the date the Plan is approved by the Board shall be granted an Option
on such date to purchase Five Thousand (5,000) Shares without further
action by the Board or the Committee. On each anniversary date of
such date, each such Director who is still a Director on such
anniversary date shall be granted an Option to purchase Five Thousand
(5,000) Shares without further action by the Board or the Committee.
5.2 FUTURE DIRECTORS. Each Director who joins the Board
after the date the Plan is approved by the Board shall be granted an
Option on the first day of his initial term on the Board to purchase
Five Thousand (5,000) Shares without further action by the Board or
the Committee. On each anniversary date of the date the Plan is
approved by the Board following the date the Director joined the
Board (which first anniversary date is at least twelve (12) months
following the initial grant date for such Director pursuant to this
Section 5.2), each such Director who is still a Director on such
anniversary date shall be granted an Option to purchase Five Thousand
(5,000) Shares without further action by the Board or the Committee.
5.3 LIMITATIONS. Notwithstanding anything to the contrary
herein, no Director shall receive Options to acquire more than One
Hundred Thousand (100,000) Shares. If the number of Shares available
to grant under the Plan on a scheduled date of grant is insufficient
to make all automatic grants required to be made pursuant to the Plan
on such date, then each eligible Director shall receive an Option to
purchase a pro rata number of the remaining Shares available under
the Plan; provided
- 8 -
<PAGE> 9
further, however, that if such proration results in fractional Shares,
then such Option shall be rounded down to the nearest number of whole
Shares.
6. BASIC STOCK OPTION PROVISIONS.
6.1 OPTION PRICE. The option price per share of any Option
granted under the Plan shall be the Fair Market Value of the Shares
covered by the Option on the
date the Option is granted.
6.2 TERMS OF OPTIONS.
(a) Options granted hereunder shall be exercisable for a
Term of five (5) years from the date of grant thereof, but
shall be subject to earlier termination as hereinafter
provided, and
(b) Except as otherwise provided in the Plan, prior to
its expiration or termination, any Option granted hereunder
may be exercised within the following time limitations:
(i) After one (1) year from the date of grant, it may
be exercised as to not more than 34% of the Shares originally
subject to the Option.
(ii) After two (2) years from the date of grant, it
may be exercised as to not more than an aggregate of 67% of
the Shares originally subject to the Option.
(iii) After three (3) years from the date of grant,
it may be exercised as to any part or all of the Shares
originally subject to the Option.
- 9 -
<PAGE> 10
6.3 TERMINATION OF DIRECTORSHIP. In the event a Director ceases to be
a member of the Board (other than by reason of death or disability), then (a)
an Option may be exercised by the Director (to the extent that the Director was
entitled to do so at the termination of his or her directorship) at any time
within three (3) months after he or she ceases to be a member of the Board, but
not beyond the Term of the Option and (b) the portion of the Option that has
not vested as of the date the Director ceases to be a member of the Board shall
automatically terminate.
6.4 DEATH OR DISABILITY OF DIRECTOR. If a Director dies or becomes
disabled while he or she is a member of the Board, an Option may be exercised
in full, by his or her Successor in the event of death, or by him or her or his
or her personal representative, as the case may be, in the event of disability,
at any time within six (6) months after he or she ceases to be a member of the
Board on account of such death or disability, but not beyond the Term of the
Option. If a Director shall die within three (3) months after the date he or
she ceases to be a member of the Board, an Option may be exercised (to the
extent the Director shall have been entitled to do so at the time of his or her
death), by his or her Successor, at any time within six (6) months after his or
her death, but not beyond the Term of the Option, or before the approval of the
Plan by the Company's stockholders.
7. EXERCISE OF RIGHTS UNDER AWARDS.
7.1 NOTICE OF EXERCISE. A Director entitled to exercise an
Option may do so by delivery of a written notice to that effect
specifying the number of Shares with respect to which the Option is
being exercised and any other information the Committee may require.
The notice shall be accompanied by payment in full of the
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<PAGE> 11
purchase price of any Shares to be purchased, which payment shall be
made in cash or by certificates of Shares held for more than six (6)
months duly endorsed in blank, equal in value to the purchase price of
the Shares to be purchased based on their Fair Market Value at the time
of exercise or a combination thereof. No Shares shall be issued upon
exercise of an Option until full payment has been made therefor. All
notices of requests provided for herein shall be delivered to the
Company's Chairman of the Board, or such other person as the Committee
may designate. No fractional Shares shall be issued.
7.2 CASHLESS EXERCISE PROCEDURES. The Company, in its sole
discretion, may establish procedures whereby a Director, subject to
the requirements of Rule 16b-3, Regulation T, federal income tax laws,
and other federal, state and local tax and securities laws, can
exercise an Option or a portion thereof without making a direct
payment of the option price to the Company. If the Company so elects
to establish a cashless exercise program, the Company shall determine,
in its sole discretion, and from time to time, such administrative
procedures and policies as it deems appropriate and such procedures
and policies shall be binding on any Director wishing to utilize the
cashless exercise program.
8. RIGHTS OF OPTION HOLDER. The holder of an Option shall not have any
of the rights of a stockholder with respect to the Shares subject to purchase
or receipt under his or her Option, except to the extent that one or more
certificates for such Shares shall be issuable to the holder upon the due
exercise of the Option and if the payment in full of the purchase price
therefor.
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<PAGE> 12
9. NONTRANSFERABILITY OF OPTIONS. An Option shall not be transferable,
other than: (a) by will or the laws of descent and distribution, and an Option
may be exercised, during the lifetime of the holder of the Option, only by the
holder, or in the event of death, the holder's Successor, or in the event of
disability, the holder's personal representative, or (b) pursuant to a
qualified domestic relation order, as defined in the Code or ERISA or the rules
thereunder.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
changes in all of the outstanding Shares by reason of stock dividends, stock
splits, reclassifications, recapitalizations, mergers, consolidations,
combinations, or exchanges of shares, separations, reorganizations or
liquidations, or similar events, or in the event of extraordinary cash or
non-cash dividends being declared with respect to the Shares, or similar
transactions or events, the number and class of Shares available under the Plan
in the aggregate, the number and class of Shares subject to Options theretofore
granted, applicable purchase prices and all other applicable provisions, shall,
subject to the provisions of the Plan, be equitably adjusted by the Committee
(which adjustment may, but not need, include payment to the holder of an
Option, in cash or in shares, in an amount equal to the difference between the
price at which such Option may be exercised and the then current fair market
value of the Shares subject to such Option as equitably determined by the
Committee). The foregoing adjustment and the manner of application of the
foregoing provisions shall be determined by the Committee, in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an Option.
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<PAGE> 13
11. CHANGE IN CONTROL. Notwithstanding anything to the contrary herein
or in any Option Agreement, in the case of a Change in Control, each Option
granted under the Plan shall terminate ninety (90) days after the occurrence of
such Change in Control, and an Option holder shall have the right, commencing
at least five (5) days prior to such Change in Control and subject to any other
limitation on exercise of an Option in effect on the date of exercise, to
immediately exercise any Option in full, without regard to any vesting
limitations, to the extent it shall not have been previously exercised.
12. FORMS OF OPTIONS. An Option shall be granted hereunder on the date
or dates specified in the Plan. Whenever the Plan provides for the receipt of
an Option by an Director, the Company's Chairman of the Board or such other
person as the Committee shall appoint, shall forthwith send notice thereof to
the Director, in such form as the Committee shall approve, stating the number
of Shares subject to the Option, its Term, and the other terms and conditions
thereof. The notice shall be accompanied by a written Option Agreement, in such
form as may from time to time hereafter be approved by the Committee, which
shall have been duly executed by or on behalf of the Company. Execution by the
Director to whom such Option is granted of said Option Agreement in accordance
with the provisions set forth in this Plan shall be a condition precedent to
the exercise of any Option.
13. TAXES.
13.1 RIGHT TO WITHHOLD REQUIRED TAXES. The Company shall have
the right to require a person entitled to receive Shares pursuant to
the exercise of an Option under the Plan to pay the Company the amount
of any taxes which the Company is
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<PAGE> 14
or will be required to withhold, if any, with respect to such Shares
before the certificate for such Shares is delivered pursuant to the
Option. Furthermore, the Company may elect to deduct such taxes from
any other amounts then payable in cash or in shares or from any other
amounts payable any time thereafter to the Director.
13.2 DIRECTOR ELECTION TO WITHHOLD SHARES. A Director may
satisfy the withholding tax liability, if any, with respect to the
exercise of an Option, by having the Company withhold Shares otherwise
issuable upon exercise of the Option if such Director makes an
election to do so which satisfies the requirements of Rule 16b-3.
14. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years
from the date hereof, and an Option shall not be granted under the Plan after
that date although the terms of any Option may be amended at any date prior to
the end of its Term in accordance with the Plan. Any Option outstanding at the
time of termination of the Plan shall continue in full force and effect
according to the terms and conditions of the Option and this Plan.
15. AMENDMENT OF THE PLAN. The Plan may be amended at any time and
from time to time by the Board, but no amendment without the approval of the
stockholders of the Company shall be made if stockholder approval under Rule
16b-3 would be required. Notwithstanding the foregoing, the Plan may not be
amended more than once every six (6) months to change the Plan provisions
listed in section (c)(2)(ii)(A) of Rule 16b-3, other than to comport with
changes in the Code, ERISA or Rule 16b-3. Notwithstanding the discretionary
authority granted to the Committee in Section 4 of the Plan, no amendment
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<PAGE> 15
of the Plan or any Option granted under the Plan shall impair any of the rights
of any holder, without the holder's consent, under any Option theretofore
granted under the Plan.
16. DELIVERY OF SHARES ON EXERCISE. Delivery of certificates for
Shares pursuant to an Option exercise may be postponed by the Company for such
period as may be required for it with reasonable diligence to comply with any
applicable requirements of any federal, state or local law or regulation or any
administrative or quasi-administrative requirement applicable to the sale,
issuance, distribution or delivery of such Shares. The Committee may, in its
sole discretion, require a Director to furnish the Company with appropriate
representations and a written investment letter prior to the exercise of an
Option or the delivery of any Shares pursuant thereto.
17. FEES AND COSTS. The Company shall pay all original issue taxes on
the exercise of any Option granted under the Plan and all other fees and
expenses necessarily incurred by the Company in connection therewith.
18. EFFECTIVENESS OF THE PLAN. The Plan shall become effective when
approved by the Board. The Plan shall thereafter be submitted to the Company's
stockholders for approval and unless the Plan is approved by the affirmative
votes of the holders of shares having a majority of the voting power of all
shares either (i) represented at a meeting duly held in accordance with
Delaware law within twelve (12) months after being approved by the Board or
(ii) obtained by a written consent in accordance with Delaware law within
twelve (12) months after being approved by the Board, the Plan and all Options
made under it shall be void and of no force and effect. In aid of this
provision, any Option granted prior
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<PAGE> 16
to the approval of the Plan by the Company's stockholders shall be conditioned
upon receipt of such approval.
19. OTHER PROVISIONS. As used in the Plan, and in Option Agreement and
other documents prepared in implementation of the Plan, references to the
masculine pronoun shall be deemed to refer to the feminine or neuter, and
references in the singular or the plural shall refer to the plural or the
singular, as the identity of the person or persons or entity or entities being
referred to may require. The captions used in the Plan and in such Option
Agreement and other documents prepared in implementation of the Plan are for
convenience only and shall not affect the meaning of any provision hereof or
thereof.
20. DELAWARE LAW TO GOVERN. This Plan shall be governed by and
construed in accordance with the laws of the State of Delaware.
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<PAGE> 17
AMENDMENT NO. 1
TO THE NON-EMPLOYEE DIRECTORS' PLAN
OF MICHAEL ANTHONY JEWELERS, INC.
1. Section 2.4 of the Plan is hereby amended by adding the phrase ",to
the extent practical," after the word "eligibility" in the phrase "whose
members meet the requirements for eligibility to serve" near the end of the
sentence.
2. Section 4 of the Plan is hereby amended by deleting the first two
sentences of the paragraph and adding the following three sentences at the
beginning of the paragraph:
"The Board may appoint a Committee to administer the Plan, which
Committee shall consist of not less than two (2) disinterested
directors, to the extent practical, as defined in Rule 16b-3. Subject
to the provisions of the Plan, the Committee or the Board shall have
full authority, in its discretion, to interpret the Plan, to prescribe,
amend, and rescind rules and regulations relating to the Plan, and
generally to interpret and determine any and all matters whatsoever
relating to the administration of the Plan and the granting of Options
hereunder. Notwithstanding anything in the Plan to the contrary any and
all rights conferred upon the Committee shall also be conferred upon
the Board."
3. Section 7.1 of the Plan is hereby amended by deleting the phrase
"held for more than six (6) months," from the second sentence of the paragraph.
4. Section 9 of the Plan is hereby amended by deleting the existing
paragraph in its entirety and replacing it with the following:
"TRANSFERABILITY OF OPTIONS. An Option granted under the Plan
shall be freely transferable by the recipient, as long as the
recipient shall notify the Company prior to the transfer of such
Option."
5. Section 15 of the Plan is hereby amended by deleting the following
sentence from said paragraph:
"Notwithstanding the foregoing, the Plan may not be amended more
than once every six (6) months to change the Plan provisions listed
in section (c)(2)(ii)(A) of Rule 16b-3, other than to comport with
changes in the Code, ERISA or Rule 16b-3."
6. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Plan.
7. This Amendment No. 1 to the Plan shall be effective when approved
by the Board.
As approved by the Board of Directors of the Company on November 8, 1996.
<PAGE> 1
Exhibit 5
[MICHAEL ANTHONY(R) LETTERHEAD]
June 12, 1997
Board of Directors
Michael Anthony Jewelers, Inc.
115 South MacQuesten Parkway
Mount Vernon, New York 10550
RE: Registration Statement on Form S-8 Re: Non-Employee
Directors' Stock Option Plan filed by Michael Anthony
Jewelers, Inc. with the Securities and Exchange Commission
Gentlemen:
Michael Anthony Jewelers, Inc., a Delaware corporation (the "Company"),
has filed with the Securities and Exchange Commission under the Securities Act
of 1933, a Registration Statement on Form S-8 which relates to 250,000 shares of
the Company's Common Stock, $.001 par value per share (the "Shares"), to be
issued upon the exercise of stock options granted under the Company's 1993
Non-Employee Directors' Stock Option Plan (the "Plan").
The Company has requested that I render an opinion with respect to the
Shares. I have examined such documents, instruments and matters of law as I have
deemed necessary for purposes of this opinion.
Based upon the foregoing, I am of the opinion that the Shares are duly
authorized and, when issued, delivered and paid for in accordance with the Plan,
will be validly issued, fully paid and non-assessable.
I hereby consent to (1) being named in the Registration Statement under
the heading "Legal Matters" and (2) the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ M. Frances Durden
---------------------
M. Frances Durden
General Counsel
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Michael Anthony Jewelers, Inc. on Form S-8 of our report dated April 11, 1997,
appearing in the Annual Report on Form 10-K of Michael Anthony Jewelers, Inc.
for the year ended February 1, 1997.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
June 11, 1997
