<PAGE> 1
As filed with the Securities and Exchange Commission on September 18, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------
OROAMERICA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-2385342
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
443 NORTH VARNEY STREET
BURBANK, CALIFORNIA 91502
(Address of principal executive offices) (Zip Code)
</TABLE>
SUPPLEMENTAL NON-EMPLOYEE DIRECTOR
STOCK OPTION PLAN
(Full title of the plan)
GUY BENHAMOU, CHAIRMAN OF THE BOARD
OROAMERICA, INC.
443 NORTH VARNEY STREET
BURBANK, CALIFORNIA 91502
(Name and address of agent for service)
(818) 848-5555
(Telephone number, including area code, of agent for service)
Copy to:
HOWARD Z. BERMAN, ESQ.
ERVIN, COHEN & JESSUP LLP
9401 WILSHIRE BOULEVARD, 9TH FLOOR
BEVERLY HILLS, CA 90212
(310) 273-6333
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE OFFERING PRICE(*) FEE
PER UNIT(*)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock issuable under the 25,000 shares $7.50 $187,500 $55.31
Supplemental Non-Employee
Director Stock Option Plan
====================================================================================================
(*) Calculated pursuant to Rule 457(h)(1).
</TABLE>
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
OroAmerica, Inc. ("OroAmerica") hereby incorporates by reference into
this Registration Statement the following documents:
(a) OroAmerica's Annual Report on Form 10-K for the fiscal year
ended January 30, 1998; and
(b) OroAmerica's Quarterly Reports on Form 10-Q for the quarters
ended May 1, 1998 and July 31, 1998;
(c) OroAmerica's Current Report on Form 8-K dated June 25, 1998;
(d) The description of the Common Stock of OroAmerica contained in
its Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as such description may be amended from time to time.
All reports and other documents filed by OroAmerica subsequent to the
date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
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 in this Registration Statement and to be considered a
part hereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"GCL") permits a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
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 such person 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 in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person 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 such person's
conduct was unlawful.
Under Section 145 of the GCL, a corporation also 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 such
person 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 such person in connection with the defense or settlement
of such action or suit if such person
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acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation. However, in such an action
by or on behalf of a corporation, no indemnification may be made in respect of
any claim, issue or matter as to which the person is adjudged liable for
negligence or misconduct in the performance of such person's duty to the
corporation unless, and only to the extent that the court determines that,
despite the adjudication of liability but in view of all the circumstances, the
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
In addition, the indemnification provided by section 145 shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
The registrant's Certificate of Incorporation (the "Certificate") and
Bylaws provide that the registrant shall indemnify, to the fullest extent
permitted by law, each of its officers and directors, and may indemnify, to the
same extent, each of its employees and agents, who was or is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the registrant or is serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. In addition,
agreements entered into by the registrant with its directors and executive
officers require the registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts reasonably incurred in
connection with any proceeding to which any such person may be made a party by
reason of the fact that such person is or was an agent of the registrant, unless
indemnification is otherwise prohibited by law, provided such person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the registrant and, in the case of a criminal proceeding, had no
reason to believe his conduct was unlawful. The indemnification agreements also
set forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
The Certificate provides that no director of the registrant shall be
liable to the registrant or its stockholders for monetary damages for breach of
his fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the registrant 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 GCL or (iv) for any
transaction from which the director derived an improper personal benefit.
The Certificate also provides that the registrant may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the registrant, or is serving at the request of the
registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability incurred by such person in any such capacity, or arising
out of his status as such, regardless of whether the registrant is empowered to
indemnify such person under the provisions of applicable law. The registrant
currently maintains such insurance.
If the registrant's equity securities are held by less than 800
stockholders and a majority of its outstanding shares are held by persons with
California addresses, the registrant may become subject to
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Section 2115 of the California Corporations Code. In such event, according to
California law, the registrant's ability to indemnify its officers, directors
and employees would be governed by California law, which generally is more
limited than the corresponding provisions of the GCL.
ITEM 8. EXHIBITS.
4.1 OroAmerica, Inc. Supplemental Non-Employee Director Stock Option
Plan.
4.2 Form of Director Stock Option Agreement used in connection with
the OroAmerica, Inc. 1998 Supplemental Non-Employee Director
Stock Option Plan.
5.1 Opinion of Ervin, Cohen & Jessup LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ervin, Cohen & Jessup LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on pages II-5 hereof).
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) 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 end 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 that a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.;
(iii) To include any material information with respect to the
plan of distribution not previously in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 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
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<PAGE> 5
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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 plans's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant 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 registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit a copy to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Burbank, State of California, on September 17, 1998.
OROAMERICA, INC.
By: /s/ Guy Benhamou
-------------------------------------
Guy Benhamou, Chairman of the Board
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Shiu Shao and Marc Kesten, and each of them, as
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all post-effective amendments to this Registration
Statement, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the foregoing, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Guy Benhamou Chairman of the Board, President September 17, 1998
- ------------------------------- and Chief Executive Officer
Guy Benhamou
/s/ Shiu Shao Chief Financial Officer, Vice September 17, 1998
- ------------------------------- President and Director
Shiu Shao
/s/ Betty Sou Controller (Principal Accounting September 17, 1998
- ------------------------------- Officer)
Betty Sou
/s/ Bertram K. Massing Director September 17, 1998
- -------------------------------
Bertram K. Massing
/s/ Ronald A. Katz Director September 17, 1998
- -------------------------------
Ronald A. Katz
/s/ David Rousso Director September 17, 1998
- -------------------------------
David Rousso
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
OROAMERICA, INC.
SUPPLEMENTAL NON-EMPLOYEE DIRECTOR
STOCK OPTION PLAN
1. PURPOSE.
This Supplemental Non-Employee Director Stock Option Plan (this
"Plan") is intended to promote the best interests of OroAmerica, Inc., a
Delaware corporation (the "Company"), and its stockholders by providing to each
member of the Company's Board of Directors (the "Board") who is a Non-Employee
Director (as defined in paragraph 3 herein) of the Company the opportunity to
acquire a proprietary interest in the Company by periodically receiving options
(each a "Stock Option") to purchase the Company's common stock, $.001 par value
("Common Stock"), as herein provided. It is intended that this Plan will promote
an increased incentive and personal interest in the welfare of the Company by
those individuals who are primarily responsible for shaping the long-range plans
of the Company. In addition, the Company seeks both to attract and retain on its
Board persons of exceptional competence and to provide a further incentive to
serve as a director of the Company.
2. ADMINISTRATION.
2.1 This Plan shall be administered by the Board or by a duly
authorized committee of the Board. At such times as the Board is administering
this Plan, all references in this Plan to the "Committee" shall mean the Board.
2.2 In addition to the automatic grants of Stock Options
provided for in paragraph 4 of this Plan, the Committee shall have full and
complete authority, in its discretion: to grant Stock Options to one or more
Non-Employee Directors; to determine the number of Stock Options to be granted
to a Non-Employee Director; to determine the time or times at which Stock
Options shall be granted; to establish the exercise price and other terms and
conditions upon which Stock Options may be exercised; to remove or adjust any
restrictions and conditions upon Stock Options; to specify, at the time of
grant, provisions relating to the exercisability of Stock Options and to
accelerate or otherwise modify the exercisability of any Stock Options; and to
adopt such rules and regulations and to make all other determinations deemed
necessary or desirable for the administration of this Plan. All interpretations
and constructions of this Plan by the Committee, and all of its actions
hereunder, shall be binding and conclusive on all persons for all purposes.
2.3 The Company shall indemnify and hold harmless each Committee
member and each director of the Company, and the estate and heirs of such
Committee member or director, against all claims, liabilities, expenses,
penalties, damages or other pecuniary losses, including legal fees, which such
Committee member or director, his or her estate or heirs may suffer as a result
of his or her responsibilities, obligations or duties in connection with this
Plan, to the extent that insurance, if any, does not cover the payment of such
items.
<PAGE> 2
3. ELIGIBILITY.
Each member of the Board who is not an employee or executive
officer of the Company or any of its Subsidiaries (as herein defined) or of any
parent corporation of the Company (a "Non-Employee Director") shall be eligible
to be granted Stock Options under this Plan. Eligibility shall be determined on
the date a person is elected a Director. A Stock Option, once granted to a
Non-Employee Director, shall remain in effect in accordance with its terms even
if the optionee later enters the employ of the Company or a Subsidiary or
parent. "Subsidiary" shall mean each corporation which is a "subsidiary
corporation" of the Company within the definition contained in Section 424(f) of
the Internal Revenue Code of 1986, as amended (the "Code").
4. GRANTS.
4.1 Each Non-Employee Director serving on the Board on April 14,
1998, the date the Board adopted this Plan, was granted a Stock Option to
purchase 1,000 shares of Common Stock. Each such Non-Employee Director shall be
granted a Stock Option to purchase 1,000 shares of Common Stock automatically on
the date of each annual meeting of stockholders (or stockholder action in lieu
thereof) at which such Non-Employee Director is re-elected, commencing with the
annual meeting in 1999. Each Non-Employee Director who is first elected to the
Board after April 14, 1998, shall be granted a Stock Option to purchase 1,000
shares of Common Stock automatically on the date of each annual meeting of
stockholders (or stockholder action in lieu thereof) at which such Non-Employee
Director is re-elected, commencing with the first annual meeting which is at
least nine months after such Non-Employee Director was first elected.
4.2 If no annual meeting of stockholders (or stockholder action
in lieu thereof) occurs in one or more calendar years, a Stock Option which
would have been granted to a Non-Employee at an annual meeting held at least
twelve months after the last previous annual meeting of stockholders (or
stockholder action in lieu thereof) would have been contemplated by paragraph
4.1 shall be granted to each Non-Employee Director who continues in office
automatically on the anniversary of the last previous annual meeting of
stockholders (or stockholder action in lieu thereof.)
4.3 Subject to the provisions of paragraph 11 of this Plan, the
number of shares of Common Stock issued and issuable upon the exercise of Stock
Options granted under this Plan shall not exceed 25,000.
5. PURCHASE PRICE.
The purchase price (the "Exercise Price") of shares of Common
Stock subject to each Stock Option ("Option Shares") granted pursuant to
paragraph 4 shall equal the fair market value ("Fair Market Value") of such
shares on the date of grant (the "Date of Grant") of such Stock Option. The Fair
Market Value of a share of Common Stock on any date shall be equal to the
closing price of the Common Stock for the last preceding day on which the
Company's shares were traded, and the method for determining the closing price
shall be determined by the Committee. Notwithstanding the foregoing, the
Exercise Price of shares of Common Stock subject to each Stock
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<PAGE> 3
Option granted at the discretion of the Committee pursuant to paragraph 2.2
shall be determined by the Committee in its sole and absolute discretion, and
may be less than the fair market value of the Option Shares on the date of
grant, but shall not be less than $1.00 per share.
6. OPTION PERIOD.
The term of each Stock Option shall commence on the Date of
Grant of the Stock Option and shall be ten years. Subject to the other
provisions of this Plan, each Stock Option automatically granted pursuant to
paragraph 4 shall be exercisable during its term as to one-third of the Option
Shares during the twelve months beginning on the first anniversary of the Date
of Grant; one-third of the Option Shares during the twelve months beginning on
the second anniversary of the Date of Grant; and one-third of the Option Shares
during the twelve months beginning on the third anniversary of the Date of
Grant. If an optionee shall not in any period purchase all of the Option Shares
which the optionee is entitled to purchase in such period, the optionee may
purchase all or any part of such Option Shares at any time after the end of such
period and prior to the expiration of the Option. Notwithstanding the foregoing,
the exercisability of each Stock Option granted at the discretion of the
Committee pursuant to paragraph 2.2 shall be determined by the Committee in its
sole and absolute discretion.
7. EXERCISE OF OPTIONS.
7.1 Each Stock Option may be exercised in whole or in part (but
not as to fractional shares) by delivering it for surrender or endorsement to
the Company, attention of the Corporate Secretary, at the Company's principal
office, together with payment of the Exercise Price and an executed Notice and
Agreement of Exercise in the form prescribed by paragraph 7.2. Payment may be
made in cash, by cashier's or certified check, or by surrender of previously
owned shares of Common Stock valued pursuant to paragraph 5 (if the Committee
authorizes payment in stock).
7.2 Exercise of each Stock Option is conditioned upon the
agreement of the Non-Employee Director to the terms and conditions of this Plan
and of such Stock Option as evidenced by the Non-Employee Director's execution
and delivery of a Notice and Agreement of Exercise in a form to be determined by
the Committee in its discretion. Such Notice and Agreement of Exercise shall set
forth the agreement of the Non-Employee Director that: (a) no Option Shares will
be sold or otherwise distributed in violation of the Securities Act of 1933, as
amended (the "Securities Act"), or any other applicable federal or state
securities laws; (b) each Option Share certificate may be imprinted with
legends reflecting any applicable federal and state securities law restrictions
and conditions; (c) the Company may comply with said securities law restrictions
and issue "stop transfer" instructions to its Transfer Agent and Registrar
without liability; (d) each Non-Employee Director will furnish to the Company a
copy of each Form 4 or Form 5 filed by said Non-Employee Director under Section
16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and will timely file all reports required under federal securities laws; and (e)
each Non-Employee Director will report all sales of Option Shares to the
Company in writing on a form prescribed by the Company.
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<PAGE> 4
7.3 No Stock Option shall be exercisable unless and until any
applicable registration or qualification requirements of federal and state
securities laws, and all other legal requirements, have been fully complied
with. The Company will use reasonable efforts to maintain the effectiveness of a
Registration Statement under the Securities Act for the issuance of Stock
Options and shares acquired thereunder, but there may be times when no such
Registration Statement will be currently effective. The exercise of Stock
Options may be temporarily suspended without liability to the Company during
times when no such Registration Statement is currently effective, or during
times when, in the reasonable opinion of the Committee, such suspension is
necessary to preclude violation of any requirements of applicable law or
regulatory bodies having jurisdiction over the Company. If any Stock Option
would expire for any reason except the end of its term during such a suspension,
then, if exercise of such Stock Option is duly tendered before its expiration,
such Stock Option shall be exercisable and exercised (unless the attempted
exercise is withdrawn) as of the first day after the end of such suspension. The
Company shall have no obligation to file any Registration Statement covering
resales of Option Shares.
8. CONTINUOUS DIRECTORSHIP.
Except as provided in paragraph 10 below, a Non-Employee
Director may not exercise a Stock Option unless from the Date of Grant to the
date of exercise such Non-Employee Director continuously serves as a director of
the Company.
9. RESTRICTIONS ON TRANSFER.
Stock Options granted under this Plan may contain terms
specifically authorized by the Committee, in its sole discretion, which (i)
permit transfer of all or any portion of such Stock Options by an optionee to
(a) the spouse, children (including step-children and adopted children) or
grandchildren of the optionee ("Immediate Family Members"), (b) a trust or
trusts for the exclusive benefit of Immediate Family Members, (c) a corporation,
partnership, limited partnership or limited liability company in which no
persons or entities other than such optionee and Immediate Family Members have
beneficial interests, or (d) such other persons or entities as the Committee may
specifically approve, on a case-by-case basis, and (ii) permit the exercise of
such Stock Options by such transferees. Unless the Committee shall determine
otherwise in its sole discretion, transferred Stock Options may not be further
transferred by the transferees thereof except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order.
Notwithstanding any transfer permitted in accordance with the foregoing
provisions, transferred Stock Options shall continue to be subject to the same
terms and conditions as were applicable immediately before such transfer (other
than permitting such Stock Options to be exercised by a permitted transferee),
including but not limited to the provisions of this Plan and option agreements
governing (x) the exercise of Stock Options, (y) the termination of Stock
Options at the expiration of their term or following termination of the
directorship of the Non-Employee Director to which the Stock Options were issued
and (z) the payment of withholding taxes. No interest under this Plan of any
Non-Employee Director or transferee shall be subject to attachment, execution,
garnishment, sequestration, the laws of bankruptcy or any other legal or
equitable process. Except as otherwise specifically provided by the Committee in
accordance with this paragraph 9, each Stock Option granted under this Plan may
not be transferred except by will or the laws of descent and distribution
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<PAGE> 5
or pursuant to a qualified domestic relations order and shall be exercisable
during a Non-Employee Director's lifetime only by such Non-Employee Director or
by such Non-Employee Director's legal representative.
10. TERMINATION OF SERVICE.
10.1 Unless otherwise determined by the Committee, in its sole
discretion: upon termination of the directorship of a Non-Employee Director by
reason of death, all outstanding Stock Options to the extent exercisable on the
date of death of the Non-Employee Director shall remain in full force and effect
and may be exercised pursuant to the provisions thereof at any time prior to
expiration at the end of the fixed term thereof; and, upon termination of the
directorship of a Non-Employee Director by reason of Disability, all
outstanding Stock Options to the extent exercisable on the date of termination
of directorship may be exercised pursuant to the provisions thereof at any time
until the earlier of the end of the fixed term thereof and the expiration of
twelve months following termination of the Non-Employee Director's directorship.
Unless otherwise provided by the Committee, all Stock Options to the extent not
presently exercisable by such Non-Employee Director at the date of death or
termination of directorship by reason of Disability, shall terminate as of the
date of death or such termination of directorship and shall not be exercisable
thereafter.
10.2 Unless otherwise determined by the Committee, in its sole
discretion, upon the termination of the directorship of a Non-Employee Director
for any reason other than the reasons set forth in paragraph 10.1, the Stock
Option may be exercised during the period of three months following the date of
such termination of directorship, but only to the extent that such Stock Option
was outstanding and exercisable on such date of termination of directorship.
Unless otherwise determined by the Committee, in its sole discretion, all Stock
Options to the extent not then presently exercisable by such Non-Employee
Director shall terminate as of the date of such termination of directorship and
shall not be exercisable thereafter.
10.3 For purposes of this Plan, "Disability" shall mean total
and permanent incapacity of a Non-Employee Director, due to physical impairment
or legally established mental incompetence, to perform the usual duties of a
director, which disability shall be determined: (i) on medical evidence by a
licensed physician designated by the Committee, or (ii) on evidence that the
Non-Employee Director has become entitled to receive primary benefits as a
disabled employee under the Social Security Act in effect on the date of such
disability.
11. ADJUSTMENTS UPON CHANGE IN CAPITALIZATION.
11.1 The number and class of shares subject to each Stock Option
outstanding from time to time, the Exercise Price thereof (but not the total
price), the maximum number of Stock Options that may be granted under this Plan,
and the minimum number of shares as to which a Stock Option may be exercised at
any one time, shall be proportionately adjusted in the event of any increase or
decrease in the number of the issued shares of Common Stock which results from a
split-up or consolidation of shares, payment of a stock dividend or dividends, a
recapitalization (other than the conversion of convertible securities according
to their terms), a combination of shares or other like capital adjustment (a
"Capital Adjustment"), so that upon exercise of the Stock Option, the Non-
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<PAGE> 6
Employee Director shall receive the number and class of shares such Non-Employee
Director would have received had such Non-Employee Director been the holder of
the number of shares of Common Stock for which the Stock Option is being
exercised upon the date of such Capital Adjustment. A similar adjustment shall
be made to the number of Option Shares for which Stock Options shall be granted
automatically to Non-Employee Directors as contemplated by paragraph 4 of this
Plan as a result of any Capital Adjustment.
11.2 Upon a reorganization, merger or consolidation of the
Company with one or more corporations as a result of which the Company is not
the surviving corporation or in which the Company survives as a subsidiary of
another corporation, or upon a sale of all or substantially all of the property
of the Company to another corporation, or any dividend or distribution to
stockholders of more than ten percent (10%) of the Company's assets, adequate
adjustment or other provisions shall be made by the Company or other party to
such transaction so that there shall remain and/or be substituted for the Option
Shares provided for herein, the shares, securities or assets which would have
been issuable or payable in respect of or in exchange for such Option Shares
then remaining, as if the Non-Employee Director had been the owner of such
shares as of the applicable date. Any securities so substituted shall be subject
to similar successive adjustments.
11.3 In the event of a change in control ("Change in Control")
of the Company, all outstanding Stock Options shall immediately become and shall
thereafter be exercisable in full until expiration at the end of the fixed term
thereof or until earlier terminated in accordance with paragraphs 10 or 16. A
Change in Control of the Company shall be deemed to have occurred (a) on the
date the Company first has actual knowledge that any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Exchange Act or any amendment or
replacement of such sections) has become the beneficial owner (as defined in
Rule 13(d)-3 under the Exchange Act or any amendment or replacement of such
Rule), 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 or (b) on the date the stockholders of the Company
approve (i) a merger of the Company with or into any other corporation in which
the Company is not the surviving corporation or in which the Company survives as
a subsidiary of another corporation, (ii) a consolidation of the Company with
any other corporation, or (iii) the sale or disposition of all or substantially
all of the Company's assets or a plan of complete liquidation.
12. WITHHOLDING TAXES.
The Company shall have the right at the time of exercise of any
Stock Option to make adequate provision for any federal, state, local or foreign
taxes which it believes are or may be required by law to be withheld with
respect to such exercise ("Tax Liability"), to ensure the payment of any such
Tax Liability. The Company may provide for the payment of any Tax Liability by
any of the following means or a combination of such means, as determined by the
Committee in its sole and absolute discretion in the particular case: (i) by
requiring the Non-Employee Director to tender a cash payment to the Company,
(ii) by withholding from the Non-Employee Director's cash compensation, (iii) by
withholding from the Option Shares which would otherwise be issuable upon
exercise of the Stock Option that number of Option Shares having an aggregate
fair market value (determined in the manner prescribed by paragraph 5) as of the
date the withholding tax obligation
-6-
<PAGE> 7
arises in an amount which is equal to the Non-Employee Director's Tax Liability
or (iv) by any other method deemed appropriate by the Committee. Satisfaction of
the Tax Liability of a Non-Employee Director may be made by the method of
payment specified in clause (iii) above upon the satisfaction of such additional
conditions as the Committee shall deem in its sole and absolute discretion as
appropriate in order for such withholding of Option Shares to qualify for the
exemption provided for in Section 16b-3 of the Exchange Act.
13. AMENDMENTS AND TERMINATION.
The Board of Directors may at any time suspend, amend or
terminate this Plan at any time. No amendment or modification of this Plan may
be adopted, except subject to stockholder approval, which would: (a) materially
increase the benefits accruing to Non-Employee Directors under this Plan, (b)
materially increase the maximum number of Option Shares which may be issued
under this Plan (except for adjustments pursuant to paragraph 11), or (c)
materially modify the requirements as to eligibility for participation in this
Plan.
14. SUCCESSORS IN INTEREST.
The provisions of this Plan and the actions of the Committee
shall be binding upon all heirs, successors and assigns of the Company and of
Non-Employee Directors.
15. OTHER DOCUMENTS.
All documents prepared, executed or delivered in connection with
this Plan shall be, in substance and form, as established and modified by the
Committee or by persons under its direction and supervision; provided, however,
that all such documents shall be subject in every respect to the provisions of
this Plan, and in the event of any conflict between the terms of any such
document and this Plan, the provisions of this Plan shall prevail.
16. MISCONDUCT OF A NON-EMPLOYEE DIRECTOR.
Notwithstanding any other provision of this Plan, all
unexercised Stock Options held by a Non-Employee Director shall automatically
terminate as of the date his or her directorship is terminated, if such
directorship is terminated on account of any act of fraud, embezzlement,
misappropriation or conversion of assets or opportunities of the Company, or if
the Non-Employee Director takes any other action materially inimical to the best
interests of the Company, as determined by the Committee in its sole and
absolute discretion. Upon termination of such Stock Options, such Non-Employee
Director shall forfeit all rights and benefits under this Plan.
17. TERM OF PLAN.
This Plan was adopted by the Board effective as of April 14,
1998. No Stock Options may be granted under this Plan after April 13, 2008.
-7-
<PAGE> 8
18. GOVERNING LAW.
This Plan shall be construed in accordance with, and governed
by, the laws of the State of Delaware.
19. PRIVILEGES OF STOCK OWNERSHIP.
The holder of a Stock Option shall not be entitled to the
privileges of stock ownership as to any shares of Common Stock not actually
issued to such holder.
IN WITNESS WHEREOF, this Supplemental Plan has been executed as of April
14, 1998.
OROAMERICA, INC.
By: /s/ Guy Benhamou
-----------------------
Guy Benhamou, President
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<PAGE> 1
EXHIBIT 4.2
OROAMERICA, INC.
DIRECTOR STOCK OPTION AGREEMENT
(SUPPLEMENTAL NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN)
This Director Stock Option Agreement (the "Agreement") is made and
entered into as of ____________ , by and between OROAMERICA, INC., a Delaware
corporation (the "Company"), and ________________ ("Optionee"), with reference
to the following facts:
A. The Company has duly adopted a Supplement Non-Employee Director Stock
Option Plan (hereinafter referred to as the "Plan"), under which each
Non-Employee Director is to be automatically granted a stock option to purchase
1,000 shares of the Company's Common Stock at Fair Market Value on the date of
each annual meeting of stockholders (or stockholder action in lieu thereof) at
which such Non-Employee Director is re-elected, in order to promote an increased
incentive and personal interest in the Company by those individuals who are
primarily responsible for shaping the long-range plans of the Company. All
capitalized terms used in this Agreement that are not otherwise defined herein
shall have the meanings attributed to them in the Plan.
B. Optionee was re-elected as a Non-Employee Director on ______________,
and the stock option represented by this Agreement was granted to Optionee
automatically on that date (the "Date of Grant").
NOW, THEREFORE, the parties agree as follows:
1. Grant of Option
The Company has granted to Optionee the right and option
(hereinafter referred to as the "Option") to purchase from time to time all or
any part of an aggregate of 1,000 shares (the "Option Shares") of the common
stock, without par value, of the Company ("Common Stock") on the terms and
conditions set forth in this Agreement.
2. Purchase Price
The purchase price (the "Exercise Price") of each Option Share
shall be $_____.
3. Option Period
The Option shall commence on the Date of Grant and shall expire,
and all rights to purchase Option Shares shall terminate, at the close of
business on the day immediately preceding the tenth anniversary of the Date of
Grant, unless terminated earlier as provided in this Agreement. Subject to the
foregoing and to Paragraph 9.3, the Option shall be exercisable during its term
as to: one-third of the Option Shares during the twelve months beginning on the
first anniversary of the Date of Grant; an additional one-third of the Option
Shares during the twelve months beginning on the second anniversary of the Date
of Grant; and an additional one-third of the Option Shares during the twelve
months beginning on the third anniversary of the Date of Grant; provided,
however, if Optionee shall not in any period purchase all of the Option Shares
which Optionee is entitled to
<PAGE> 2
purchase in such period, Optionee may purchase all or any part of such Option
Shares at any time after the end of such period and prior to the expiration of
the Option.
4. Exercise of Option
The Option shall be exercised (in whole or in part) by
delivering this Agreement for endorsement to the Company, at its principal
office, attention of the Corporate Secretary, together with a Notice and
Agreement of Exercise (in the form attached hereto or specified from time to
time by the Committee) indicating the number of Option Shares Optionee wishes to
purchase and full payment of the Exercise Price of such Option Shares. Payment
shall be made in cash, by cashier's or certified check, or by surrender of
previously owned shares of the Common Stock valued at Fair Market Value on the
date of exercise (if the Committee authorizes payment in stock). The minimum
number of shares as to which the Option may be exercised at any time is ten. In
no event shall the Company be required to issue or transfer fractional shares.
5. Directorship of Optionee
5.1 Except as provided below, Optionee may not exercise the
Option unless Optionee serves as a director of the Company continuously from the
Date of Grant to the date of exercise.
5.2 Unless otherwise determined by the Committee, if Optionee's
service as a director of the Company shall terminate because of death, (a) the
Option, to the extent then presently exercisable, shall remain in full force and
effect and may be exercised pursuant to the provisions hereof, including
expiration at the end of the fixed term hereof, and (b) the Option, to the
extent not then presently exercisable, shall terminate as of the date of such
termination and shall not be exercisable thereafter.
5.3 Unless otherwise determined by the Committee, if Optionee's
service as a director of the Company shall terminate because of Disability, (a)
the Option, to the extent then presently exercisable, shall remain exercisable
and may be exercised pursuant to the provisions hereof at any time until the
earlier of the end of the fixed term hereof or the expiration of twelve months
following termination of Optionee's directorship, and (b) the Option, to the
extent not then presently exercisable, shall terminate as of the date of such
termination of directorship and shall not be exercisable thereafter.
5.4 Unless otherwise determined by the Committee, if Optionee's
service as a director of the Company shall terminate for any reason other than
the reasons set forth in paragraphs 5.2 and 5.3 hereof, (a) the Option, to the
extent then presently exercisable, shall remain exercisable only for a period of
three months after the date of such termination of directorship and may be
exercised during such period pursuant to the provisions hereof, including
expiration at the end of the fixed term hereof, and (b) the Option, to the
extent not then presently exercisable, shall terminate as of the date of such
termination of directorship and shall not be exercisable thereafter.
2
<PAGE> 3
6. Securities Laws Requirements
6.1 The Option shall not be exercisable unless and until any
applicable registration or qualification requirements of federal and state
securities laws and all other requirements of law or any regulatory bodies
having jurisdiction over such exercise or issuance and delivery have been fully
complied with. The Company will use reasonable efforts to maintain the effective
ness of a Registration Statement under the Securities Act of 1933 (the
"Securities Act") for the issuance of the Option Shares, but there may be times
when no such Registration Statement will be currently effective. Exercise of the
Option may be temporarily suspended without liability to the Company during
times when no such Registration Statement is currently effective, or during
times when, in the reasonable opinion of the Committee, such suspension is
necessary to preclude violation of any requirements of applicable law or
regulatory bodies having jurisdiction over the Company. If the Option would
expire for any reason except the end of its term during such a suspension, then,
if exercise of the Option is duly tendered before its expiration, the Option
shall be exercisable and exercised (unless the attempted exercise is withdrawn)
as of the first day after the end of such suspension. The Company shall have no
obligation to file any Registration Statement covering resales of the Option
Shares.
6.2 Upon each exercise of the Option, Optionee shall represent,
warrant and agree, by the Notice and Agreement of Exercise delivered to the
Company, that (a) no Option Shares will be sold or otherwise distributed in
violation of the Securities Act or any other applicable federal or state
securities laws, (b) Optionee will furnish to the Company a copy of each Form 4
filed by Optionee pursuant to the reporting requirements under Section 16(a) of
the Securities Exchange Act of 1934 (the "Exchange Act") and will timely file
all reports required under federal securities laws, and (c) Optionee will report
all sales of Option Shares to the Company in writing on the form pre scribed
from time to time by the Company. All certificates for Option Shares may be
imprinted with legend conditions reflecting federal and state securities law
restrictions and conditions and the Company may comply therewith and issue "stop
transfer" instructions to its transfer agents and registrars without liability.
7. Withholding Taxes
The Committee shall have the right at the time of exercise of
the Option to make adequate provision in any manner permitted by the Plan for
any federal, state, local or foreign taxes which it believes are or may be
required by law to be withheld with respect to such exercise, to ensure the
payment of any such taxes.
8. Transferability of Option
Unless otherwise determined by the Committee in its sole
discretion, (i) Optionee may transfer all or any portion of the Option to (a)
Optionee's Immediate Family Members, (b) a trust or trusts for the exclusive
benefit of Optionee's Immediate Family Members, (c) a corporation, partnership,
limited partnership or limited liability company in which no persons or entities
other than Optionee or Optionee's Immediate Family Members have beneficial
interests, or (d) such other persons or entities as the Committee may
specifically approve, on a case-by-case basis, and (ii) the
3
<PAGE> 4
Option shall be exercisable only by Optionee, such transferees or by Optionee's
or such transferees' legal representatives. Unless the Committee shall determine
otherwise in its sole discretion, the Option may not be further transferred by
Optionee except by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order. Notwithstanding any transfer permitted in
accordance with the foregoing provisions, the Option shall continue to be
subject to the same terms and conditions as were applicable immediately before
such transfer (other than permitting the Option to be exercised by a permitted
transferee), including but not limited to the provisions of this Agreement
governing (x) the exercise of the Option, (y) the termination of the Option at
the expiration of its term or following termination of the directorship of
Optionee and (z) the payment of withholding taxes. Except as provided above, the
Option may not be assigned, transferred, pledged or hypothecated in any way,
shall not be assignable by operation of law and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition contrary to the provisions of this
Agreement, and the levy of any execution, attachment or similar process
thereupon, shall be null and void and without effect.
9. Changes in Capitalization
9.1 The number and class of shares subject to the Option, the
Exercise Price (but not the total price) and the minimum number of shares as to
which the Option may be exercised at any one time shall be proportionately
adjusted in the event of any increase or decrease in the number of the issued
shares of Common Stock of the Company which results from a split-up or
consolidation of shares, payment of a stock dividend or stock dividends, a
recapitalization (other than the conversion of convertible securities according
to their terms), a combination of shares or other like capital adjustment, so
that upon exercise of the Option, Optionee shall receive the number and class of
shares Optionee would have received had Optionee been the holder of the number
of shares of Common Stock for which the Option is being exercised upon the date
of such change or increase or decrease in the number of issued shares of the
Company.
9.2 Upon a reorganization, merger or consolidation of the
Company with one or more corporations as a result of which the Company is not
the surviving corporation or in which the Company survives as a subsidiary of
another corporation, a sale of all or substantially all of the property of the
Company to another corporation or any dividend or distribution to shareholders
of more than ten percent of the Company's assets, adequate adjustment or other
provisions shall be made by the Company or other party to such transaction so
that there shall remain and/or be substituted for the Option Shares provided for
herein, the shares, securities or assets which would have been issuable or
payable in respect of or in exchange for the Option Shares then remaining under
the Option, as if Optionee had been the owner of such shares as of the
applicable date. Any securities so substituted shall be subject to similar
successive adjustments.
9.3 If a change of control ("Change in Control") of the Company
occurs while the Option is outstanding, the Option shall immediately become and
shall thereafter be exercisable in full. A Change in Control of the Company
shall be deemed to have occurred (a) on the date the Company first has actual
knowledge that any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Exchange Act) has become the beneficial owner (as defined in Rule 13(d)-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing forty percent
4
<PAGE> 5
(40%) or more of the combined voting power of the Company's then outstanding
securities or (b) on the date the shareholders of the Company approve (i) a
merger of the Company with or into any other corporation in which the Company is
not the surviving corporation or in which the Company survives as a subsidiary
of another corporation, (ii) a consolidation of the Company with any other
corporation, or (iii) the sale or disposition of all or substantially all of the
Company's assets or a plan of complete liquidation.
10. Misconduct of Optionee
Notwithstanding any other provision of this Agreement, all
unexercised Options held by Optionee hereunder shall automatically terminate as
of the date Optionee's directorship is terminated, if such directorship is
terminated on account of any act of fraud, embezzlement, misappropriation or
conversion of assets or opportunities of the Company, or if Optionee takes any
other action materially inimical to the best interests of the Company, as
determined by the Committee in its sole and absolute discretion. Upon such
termination of the Option, Optionee shall forfeit all rights and benefits under
this Agreement.
11. Privileges of Ownership
Optionee shall not have any of the rights of a stockholder with
respect to the shares covered by the Option except to the extent that share
certificates have actually been issued and registered in Optionee's name on the
books of the Company or its registrar upon the due exercise of the Option. The
Company shall be allowed a reasonable time following notice of exercise in which
to accomplish the issuance and registration.
12. Reference to Plan
This Agreement and the Option are subject to all of the terms
and conditions of the Plan, which are hereby incorporated by reference. In the
event of any conflict between this Agreement and the Plan, the provisions of the
Plan shall prevail.
13. Notices
Any notice to be given under the terms of this Agreement shall
be addressed to the Company in care of its Corporate Secretary at 443 North
Varney Street, Burbank, California 91502, and any notice to be given to Optionee
shall be addressed to Optionee at Optionee's address appearing on the records
of the Company, or at such other address or addresses as either party may
hereafter designate in writing to the other. Any such notice shall be deemed
duly given when enclosed in a properly sealed envelope, addressed as herein
required and deposited, postage prepaid, in a post office or branch post office
regularly maintained by the United States Government.
14. Governing Law.
This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Delaware.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the Date of Grant.
"OPTIONEE"
------------------------------------
"COMPANY"
OROAMERICA, INC.
By:
---------------------------------
Guy Benhamou, President
6
<PAGE> 7
OROAMERICA, INC.
NOTICE AND AGREEMENT OF EXERCISE
OF DIRECTOR STOCK OPTION
_______________,____
I hereby exercise my OroAmerica, Inc., Supplemental Non-Employee
Director Stock Option dated ________________, as to shares of OroAmerica, Inc.
common stock, $.001 par value (the "Option Shares").
Enclosed are the documents and payment specified in Paragraph 4 of my
Option Agreement. I understand that no Option Shares will be issued and
delivered to me unless and until any applicable registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and any applicable
requirements of law or any regulatory bodies having jurisdiction over such
issuance and delivery have been fully complied with. I hereby represent, warrant
and agree, to and with OroAmerica, Inc. (the "Company"), that:
a. The Option Shares are being acquired for my account, and no other
person (except, if I am married, my spouse) will own any interest therein.
b. I will not sell or dispose of my Option Shares in violation of the
Securities Act or any other applicable federal or state securities laws.
c. The Company may, without liability, place legend conditions upon the
Option Shares and issue "stop transfer" restrictions requiring compliance with
applicable securities laws and the terms of my Option Agreement.
d. So long as I am subject to reporting requirements under Section 16(a)
of the Securities Exchange Act of 1934, I will furnish to the Company a copy of
each Form 4 or Form 5 filed by me and will timely file all reports required
under the federal securities laws.
e. I will report to the Company all sales of Option Shares on the form
prescribed from time to time by the Company.
The Option Shares specified above are to be issued in the following
registration (husband and wife will be shown to be joint tenants unless I state
that the Option Shares will be held as community property or as tenants in
common):
- ------------------------------------ -------------------------------
(Print your name) (Signature)
- ------------------------------------ -------------------------------
(Option - Print name of spouse if
you wish joint registration)
-------------------------------
Address
7
<PAGE> 1
Exhibit 5.1
[ERVIN, COHEN & JESSUP LLP LETTERHEAD]
September 14, 1998
OroAmerica, Inc.
443 North Varney Street
Burbank, CA 91502
Gentlemen:
We have acted as your counsel in connection with the preparation of a
registration statement on Form S-8 to be filed with the Securities and Exchange
Commission (the "Registration Statement") with respect to 25,000 shares of
Common Stock of OroAmerica, Inc., a Delaware corporation (the "Company"),
reserved for issuance from time to time under the Company's Supplemental
Non-Employee Director Stock Option Plan (the "Supplemental Plan"). The foregoing
shares of Common Stock are hereinafter referred to as the "Shares".
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. Based upon our
examinations and inquiries, it is our opinion that the Shares have been duly
authorized by the Board of Directors of the Company and, when issued in
accordance with the terms of the Supplemental Plan and awards made thereunder,
the shares will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ervin, Cohen & Jessup LLP
-----------------------------
Ervin, Cohen & Jessup LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 6, 1998, appearing on page F-1
of OroAmerica, Inc.'s Annual Report on Form 10-K for the year ended
January 30, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Los Angeles, California
September 17, 1998
