<PAGE> 1
As filed with the Securities and Exchange Commission on May 1, 1998
Registration No. 333-
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)
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)
1996 DIRECTOR STOCK OPTION AWARD
1997 DIRECTOR STOCK OPTION AWARD
(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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER UNIT(*) OFFERING PRICE(*) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK ISSUABLE UNDER THE ......... 5,000 SHARES $ 4.6875 $ 23,437.50 $ 6.91
1996 STOCK OPTION AWARD
- --------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK ISSUABLE UNDER THE ......... 5,000 SHARES $ 4.9375 $ 24,687.50 $ 7.28
1997 STOCK OPTION AWARD
- --------------------------------------------------------------------------------------------------------------------------------
TOTAL ................................... $ 14.19
================================================================================================================================
</TABLE>
(*) CALCULATED PURSUANT TO RULE 457(h)(1).
<PAGE> 2
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) 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 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
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<PAGE> 3
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 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.
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<PAGE> 4
ITEM 8. EXHIBITS.
4.1 Stock Option Agreement, dated as of March 18, 1996, between the
registrant and Ronald A. Katz.
4.2 Stock Option Agreement, dated as of April 14, 1997, between the
registrant and Bertram K. Massing.
5.1 Opinion of Ervin, Cohen & Jessup LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Ervin, Cohen & Jessup, LLP (included in Exhibit 5.1).
24.1 Power 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 securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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<PAGE> 5
(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.
II-4
<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 April 30, 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 April 30, 1998
- ---------------------------------- and Chief Executive Officer
Guy Benhamou
/s/ Shiu Shao Chief Financial Officer, Vice April 30, 1998
- ---------------------------------- President and Director
Shiu Shao
/s/ Betty Sou Controller (Principal Accounting April 30, 1998
- ---------------------------------- Officer)
Betty Sou
/s/ Bertram K. Massing Director April 30, 1998
- ----------------------------------
Bertram K. Massing
/s/ Ronald A. Katz Director April 30, 1998
- ----------------------------------
Ronald A. Katz
/s/ David Rousso Director April 30, 1998
- ----------------------------------
David Rousso
</TABLE>
II-5
<PAGE> 1
EXHIBIT 4.1
OROAMERICA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered
into as of March 18, 1996, by and between OROAMERICA, INC., a Delaware
corporation (the "Company"), and RONALD A. KATZ ("Optionee"), with reference to
the following facts:
A. The Company has granted to Optionee a stock option for the number
of shares, at the price per share and on the terms set forth in this Agreement,
pursuant to resolutions duly adopted by the Board of Directors of the Company on
March 18, 1996 (the "Date of Grant").
B. The parties desire to enter into this Agreement in order to
memorialize the terms of the stock option granted to Optionee.
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 5,000 shares (the "Option Shares") of the Common
Stock, $.001 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 $4.6875.
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: 20% of the Option Shares during the twelve months beginning on the first
anniversary of the Date of Grant; an additional 20% of the Option Shares during
the twelve months beginning on the second anniversary of the Date of Grant; an
additional 20% of the Option Shares during the twelve months beginning on the
third anniversary of the Date of Grant; an additional 20% of the Option Shares
during the twelve months beginning on the fourth anniversary of the Date of
Grant; and an additional 20% of the Option Shares during the twelve months
beginning on the fifth 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 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.
<PAGE> 2
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 in Paragraph 5.2, 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 Upon the termination of Optionee's service as a director of the
Company for any reason, the Option (a) to the extent then presently exercisable,
shall remain exercisable only for a period of ninety (90) days after the date of
such termination of service and may be exercised pursuant to the provisions
hereof, including expiration at the end of the fixed term thereof, and (b) to
the extent not then presently exercisable, shall terminate as of the date of
such termination of service and shall not be exercisable thereafter.
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 require ments of law or any regulatory bodies
having jurisdiction over such exercise or issuance and delivery have been fully
complied with. 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.
2
<PAGE> 3
7. Withholding Taxes
The Committee shall have the right at the time of exercise of the
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, to ensure the payment of any such taxes.
8. Non-transferability of Option
The Option shall be transferable only by will or the laws of descent
and distribution or pursuant to a "qualified domestic relations order," as
defined in the Internal Revenue Code of 1986, as amended. Subject to the
foregoing, the Option shall be exercisable during Optionee's lifetime only by
Optionee or by Optionee's legal representative. Without limiting the generality
of the foregoing, the Option may not be assigned, transferred (except as
provided above), 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
exceeding a total of five percent for which the record dates occur in any one
fiscal year, 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.
3
<PAGE> 4
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 (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. 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. 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 appear ing 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.
13. Governing Law.
This Agreement shall be construed in accordance with, and governed
by, the laws of the State of California.
4
<PAGE> 5
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the Date of Grant.
"OPTIONEE"
/s/ Ronald A. Katz
-------------------------------
Ronald A. Katz
"COMPANY"
OROAMERICA, INC.
By: /s/ Guy Benhamou
-------------------------------
Guy Benhamou, President
5
<PAGE> 6
OROAMERICA, INC.
NOTICE AND AGREEMENT OF EXERCISE
OF STOCK OPTION
_____________,____
I hereby exercise my OroAmerica, Inc., Stock Option dated March 18,
1996, 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 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
<PAGE> 1
EXHIBIT 4.2
OROAMERICA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered
into as of April 14, 1997, by and between OROAMERICA, INC., a Delaware
corporation (the "Company"), and BERTRAM K. MASSING ("Optionee"), with reference
to the following facts:
A. The Company has granted to Optionee a stock option for the number
of shares, at the price per share and on the terms set forth in this Agreement,
pursuant to resolutions duly adopted by the Board of Directors of the Company on
April 14, 1997 (the "Date of Grant").
B. The parties desire to enter into this Agreement in order to
memorialize the terms of the stock option granted to Optionee.
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 5,000 shares (the "Option Shares") of the Common
Stock, $.001 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 $4.9375.
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: 20% of the Option Shares during the twelve months beginning on the first
anniversary of the Date of Grant; an additional 20% of the Option Shares during
the twelve months beginning on the second anniversary of the Date of Grant; an
additional 20% of the Option Shares during the twelve months beginning on the
third anniversary of the Date of Grant; an additional 20% of the Option Shares
during the twelve months beginning on the fourth anniversary of the Date of
Grant; and an additional 20% of the Option Shares during the twelve months
beginning on the fifth 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 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.
<PAGE> 2
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 in Paragraph 5.2, 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 Upon the termination of Optionee's service as a director of the
Company for any reason, the Option (a) to the extent then presently exercisable,
shall remain exercisable only for a period of ninety (90) days after the date of
such termination of service and may be exercised pursuant to the provisions
hereof, including expiration at the end of the fixed term thereof, and (b) to
the extent not then presently exercisable, shall terminate as of the date of
such termination of service and shall not be exercisable thereafter.
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 require ments of law or any regulatory bodies
having jurisdiction over such exercise or issuance and delivery have been fully
complied with. 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.
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<PAGE> 3
7. Withholding Taxes
The Committee shall have the right at the time of exercise of the
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, to ensure the payment of any such taxes.
8. Non-transferability of Option
The Option shall be transferable only by will or the laws of descent
and distribution or pursuant to a "qualified domestic relations order," as
defined in the Internal Revenue Code of 1986, as amended. Subject to the
foregoing, the Option shall be exercisable during Optionee's lifetime only by
Optionee or by Optionee's legal representative. Without limiting the generality
of the foregoing, the Option may not be assigned, transferred (except as
provided above), 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
exceeding a total of five percent for which the record dates occur in any one
fiscal year, 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.
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<PAGE> 4
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 (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. 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. 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 appear ing 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.
13. Governing Law.
This Agreement shall be construed in accordance with, and governed
by, the laws of the State of California.
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<PAGE> 5
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the Date of Grant.
"OPTIONEE"
/s/ Bertram K. Massing
----------------------------
Bertram K. Massing
"COMPANY"
OROAMERICA, INC.
By: /s/ Guy Benhamou
-------------------------
Guy Benhamou, President
5
<PAGE> 6
OROAMERICA, INC.
NOTICE AND AGREEMENT OF EXERCISE
OF STOCK OPTION
I hereby exercise my OroAmerica, Inc., Stock Option dated April 14,
1997, 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 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
<PAGE> 1
[ERVIN, COHEN & JESSUP LLP LETTERHEAD]
REF. OUR FILE NO.
6667-045
April 30, 1998
OroAmerica, Inc.
443 North Varney Street
Burbank, California 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 an aggregate
of 10,000 shares of Common Stock of OroAmerica, Inc., a Delaware corporation
(the "Company"), consisting of 5,000 shares of Common Stock of the Company
reserved for issuance from time to time upon the exercise of the stock option
granted under each the 1996 Director Stock Option Award and the 1997 Director
Stock Option Award (the "Awards"). 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 respective Awards, 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
<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.
PRICE WATERHOUSE LLP
Los Angeles, California
April 29, 1998
