As filed with the Securities and Exchange Commission on July 8, 2005
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
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Acme United Corporation
(Exact name of Registrant as specified in its charter)
Connecticut 06-0236700
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1931 Black Rock Turnpike
Fairfield, Connecticut 06825
(Address of principal executive offices, including zip code)
Acme United Corporation 2005 Non-Salaried Director Stock Option Plan
Acme United Corporation 2002 Employee Stock Option Plan, as amended
(Full Title of the Plans)
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Paul Driscoll
Chief Financial Officer
1931 Black Rock Turnpike
Fairfield, Connecticut 06825
(Name and address of agent for service)
(203) 332-7330
(Telephone number, including area code, of agent for service)
copy to:
Merritt A. Cole, Esq.
Dilworth Paxson LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
Phone (215) 575-7000
Fax (215) 575-7200
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount Being Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------------
Common Stock, par value
$2.50 per share............. 151,938 $17.99(2) $2,733,365(2) $321.72
- ---------------------------------------------------------------------------------------------------------
Common Stock, par value
$2.50 per share............. 171,500 $17.02(3) $1,826,508(3) $214.98
- ---------------------------------------------------------------------------------------------------------
Common Stock, par value
$2.50 per share............. 7,500 $15.15(4) $113,625(4) $13.37
- ---------------------------------------------------------------------------------------------------------
TOTAL 330,938 $550.07
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457 (c) and 457 (h) under the Securities Act of 1933,
as amended (the "Securities Act"), based upon the average of the high
and low prices for a share of Common Stock reported on the American
Stock Exchange as of July 1, 2005.
(3) Calculated pursuant to Rule 457 (h)(1) under the Securities Act; the
171,500 shares are issuable upon exercise of outstanding options
granted under the 2002 Employee Stock Option Plan, which options have
exercise prices in the range of $3.35 - $17.02 per share.
(4) Calculated pursuant to Rule 457 (h)(1) under the Securities Act; the
7,500 shares are issuable upon exercise of outstanding options granted
under the 2005 Non-Salaried Director Stock Option Plan, which options
have an exercise price of $15.15 per share.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be
sent or given to participants as specified by Rule 428(b)(1) promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). Such documents
need not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
herein by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act (the "Prospectus").
Explanatory Note.
This Registration Statement on Form S-8 is being filed for the purpose of
registering:
(i) 50,000 shares of common stock, par value $2.50 per share (the
"Common Stock") of Acme United Corporation (the "Company")
which may be issued pursuant to the Company's 2005
Non-Salaried Director Stock Option Plan (the "Director Plan");
and
(ii) 280,938 shares of Common Stock which may be issued pursuant to
the Company's 2002 Employee Stock Option Plan (the "Employee
Plan").
Pursuant to Rule 416 under the Securities Act, an indeterminate amount of
additional shares of Common Stock, which may become issuable pursuant to the
anti-dilution or other adjustment provisions of the option plans referred to
above, are also being registered hereunder.
In February 2002, the Board of Directors of the Company approved the Employee
Plan, subject to stockholder approval. Stockholder approval of the Employee Plan
was received at the Annual Meeting of Stockholders held on April 22, 2002. In
February 2005, the Board of Directors of the Company approved the Director Plan
as well as an amendment to the Employee Plan to increase the number of shares of
Common Stock which may be issued pursuant to the Employee Plan from 150,000
shares to 300,000 shares, both subject to stockholder approval. Stockholder
approval of the Director Plan and of the amendment to the Employee Plan was
received at the Annual Meeting of Stockholders held on April 25, 2005. (Options
to purchase a total of 19,062 shares of Common Stock under the Employee Plan
have been previously exercised and such 19,062 shares are not being registered
hereunder.)
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission are incorporated by
reference and made a part of this prospectus.
|X| our Annual Report on Form 10-K for the year ended December 31,
2004;
|X| our Quarterly Report on Form 10-Q for the quarter ended March 31,
2005;
|X| our Current Reports on Form 8-K filed February 9, 2005, March 3,
2005, March 11, 2005, March 30, 2005, March 31, 2005, and April
21, 2005; and
|X| the description of our Common Stock contained in the Form 8-K
filed on July 8, 2005 including any amendment to that form that
we may have filed in the past, or may file in the future, for the
purpose of updating the description of our common stock.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 subsequent to the effective date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered by this prospectus have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this prospectus and to be a part of this prospectus
from the date of filing of such documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in any other subsequently filed
document which also is or is deemed to be incorporated by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Connecticut General Statutes Sections ("CGS") 33-771 through 33-778 provide for
mandatory, permissive and court-ordered indemnification of directors who are
parties to a proceeding. For purposes of these indemnification statutes a
"proceeding" is defined as any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal.
The Company's Restated Certificate of Incorporation provides that the Company
shall indemnify an individual who is a party to a proceeding because he is a
director or officer of the corporation against liability in the proceeding if:
(1)(A) he conducted himself in good faith; (B) he reasonably
believed (i) in the case of conduct in his official capacity, that his conduct
was in the best interests of the corporation; and (ii) in all other cases, that
his conduct was at least not opposed to the best interests of the corporation;
and (C) in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful; or
(2) such liability arises from any action taken, or any failure to
take any action, as a director or officer, except liability that (A) involved a
knowing and culpable violation of law by the director or officer; (B) enabled
the director, officer or an associate (as defined in the CGS) to receive an
improper personal gain; (C) showed a lack of good faith and a conscious
disregard for the duty of the director or officer to the corporation under
circumstances in which the director or officer was aware that his conduct or
omission created an unjustifiable risk of serious injury to the corporation; (D)
constituted a sustained and unexcused pattern of inattention that amounted to an
abdication of the director's or officer's duty to the corporation; or (E)
created liability under the CGS for the illegal payment of dividends.
The Registrant has obtained directors' and officers' reimbursement and liability
insurance against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Identification of Exhibit
4.1 Restated Certificate of Organization(a)
4.2 Bylaws of the Company(b)
4.3 Specimen Common Stock Certificate(c)
4.4 2005 Non-Salaried Director Stock Option Plan(d)
4.5 2002 Employee Stock Option Plan, as amended
4.6 Form of Option Agreement
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
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(a) Incorporated by reference to Exhibit 3(i) to the Company's Form 8-K filed on
July 8, 2005.
(b) Incorporated by reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for year ended December 31, 2004.
(c) Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K filed on
July 8, 2005.
(d) Incorporated by reference to Exhibit B to the Company's definitive proxy
statement on Schedule 14A filed on March 29, 2005.
Item 9. Undertakings
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement.
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 a prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraphs (1)(a) and (1)(b) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(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.
(4) That, for the purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fairfield, State of Connecticut, on the 8th day of
July, 2005.
ACME UNITED CORPORATION
By: /s/ Walter C. Johnsen
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Walter C. Johnsen, President and Chief
Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Walter C. Johnsen and Paul Driscoll, or either of
them, as true and lawful attorneys-in-fact and agents with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities to sign the Registration Statement filed herewith and any
or all amendments to said Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, the Securities
and Exchange Commission granting unto said attorney-in-fact and agents the 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 to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agents or any of them, or his substitute, 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 below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
/s/ Walter C. Johnsen President, Chief Executive Officer July 8, 2005
- -------------------------------------------- and Director
Walter C. Johnsen
/s/ Paul Driscoll Vice President and July 8, 2005
- -------------------------------------------- Chief Financial Officer
Paul Driscoll
/s/ Gary D. Penisten Chairman of the Board July 8, 2005
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Gary D. Penisten
/s/ Wayne R. Moore Director July 8, 2005
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Wayne R. Moore
/s/ George R. Dunbar Director July 8, 2005
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George R. Dunbar
/s/ Richmond Y. Holden, Jr. Director July 8, 2005
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Richmond Y. Holden, Jr.
/s/ Brian S. Olschan Director July 8, 2005
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Brian S. Olschan
/s/ Stevenson E. Ward III Director July 8, 2005
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Stevenson E. Ward III
/s/ Susan H. Murphy Director July 8, 2005
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Susan H. Murphy
Exhibit Index
Exhibit No. Identification of Exhibit
4.1 Restated Certificate of Organization(a)
4.2 Bylaws of the Company(b)
4.3 Specimen Common Stock Certificate(c)
4.4 2005 Non-Salaried Director Stock Option Plan(d)
4.5 2002 Employee Stock Option Plan, as amended
4.6 Form of Option Agreement
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
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(a) Incorporated by reference to Exhibit 3(i) to the Company's Form 8-K filed on
July 8, 2005.
(b) Incorporated by reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for year ended December 31, 2004.
(c) Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K filed on
July 8, 2005.
(d) Incorporated by reference to Exhibit B to the Company's definitive proxy
statement on Schedule 14A filed on March 29, 2005.
Exhibit 4.5
ACME UNITED CORPORATION
EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
The purpose of this plan (the "Plan") is to promote the interests of
Acme United Corporation (the "Corporation") by enabling its key
employees to acquire an increased proprietary interest in the
Corporation and thus to share in the future success of the
Corporation's business. Accordingly, the Plan is intended as a means
not only of attracting and retaining outstanding management personnel
but also of promoting a closer identity of interests between employees
and stockholders. Since the employees eligible to receive Options under
the Plan will be those who are in a position to make important and
direct contributions to the success of the Corporation, the Directors
believe that the grant of the Options under the Plan will be in the
best interests of the Corporation.
2. DEFINITIONS
Unless the context clearly indicates otherwise, the following terms
when used in the Plan, shall have the meanings set forth in this
Section 2.
(a) "Beneficiary" means the person or persons who shall acquire the
right to exercise an option by bequest or inheritance.
(b) "Board of Directors" or "Board" means the Board of the Directors
of the Corporation.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" means the Compensation Committee of the Board of
Directors, consisting of select Board members who are not
employees of the Corporation, but in no event fewer than two (2)
such Board members.
(e) "Common Stock" shall mean common stock, par value S2.50 per
share, of the Corporation.
(f) "Disability" means a disability as defined in the Corporation's
Long-Term Disability Plan, as amended from time to time.
(g) "Fair Market Value" shall mean the closing price for the Common
Stock on the date immediately preceding the date on which the
option is granted.
(h) "Incentive Stock Option" shall mean a stock option granted
pursuant to this Plan and intended to satisfy the requirements of
Section 422 of the Code.
(i) "Option" shall mean a stock option granted pursuant to the Plan.
(j) "Optionee" shall mean a person to whom an Option has been granted
under the Plan.
(k) "Option Agreement" shall mean the written agreement to be entered
into by the Corporation and the Optionee, as provided in Section
6 hereof.
(l) "Retirement" shall mean retirement pursuant to the Retirement
Plan for Employees of Acme United Corporation, as amended from
time to time.
(m) "Share" shall mean the Common Stock of the Corporation, as
adjusted in accordance with Section 16 of the Plan.
(n) "Subsidiary" shall mean any subsidiary corporation of the
Corporation within the meaning of Section 424(f)of the Code (or a
successor provision of similar import).
Where used herein, unless the context indicates otherwise, words
in the masculine form shall be deemed to refer to females as well
as to males.
3. SHARES SUBJECT TO THE PLAN
(a) The stock to be covered by the Options is the Common Stock of the
Corporation. The aggregate number of shares of Common Stock which may
be delivered on exercise of the Options is 300,000 shares, subject to
adjustment pursuant to Section 16.
(b) As determined by the Board from time to time, such shares may be
previously issued shares reacquired by the Corporation or authorized
but unissued shares. If any Option expires or terminates for any reason
without having been exercised in full, the Shares covered by the
unexercised portion of such Option shall again be available for
Options, within the limits specified above.
4. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Board of Directors of the
Corporation, which shall accept, amend, or reject recommendations made
by the Committee. In addition to its duties with respect to the Plan
stated elsewhere in the Plan, Board shall have full authority,
consistent with the Plan, to interpret the Plan, to promulgate such
rules and regulations with respect to the Plan as it deems desirable
and to make all other determinations necessary or desirable for the
administration of the Plan. All decisions, determinations, and
interpretations of the Board shall be binding upon all persons.
No member of the Board of Directors or the Committee and no employee of
the Corporation shall be liable for any act or action hereunder,
whether of omission or commission, by any other member or employee or
by any agent to whom duties in connection with the administration of
the plan have been delegated in accordance with the provisions of the
Plan or, except in circumstances involving his bad faith, for anything
done or omitted to be done by himself.
(b) Except as provided in Section 7, it is intended that the stock options
granted pursuant to the Plan constitute Incentive Stock Options within
the meaning of Section 422 of the Code. The Board shall administer the
Plan in such a manner as to establish and maintain such Options as
Incentive Stock Options.
(c) The Board may, with the consent of the Optionee, substitute Options
which are not intended to be Incentive Stock Options for outstanding
Incentive Stock Options. Any such substitution shall not constitute the
grant of a new Option for the purposes of this Plan, and shall not
require a revaluation of the Option exercised prior to the substituted
Option. Any such substitution shall be implemented by an amendment to
the applicable Option Agreement or in such other manner as the Board in
its discretion shall determine.
(d) The Committee, subject to the approval of the Board, shall make such
provision as it deems necessary or appropriate for the withholding of
any federal, state, local or other tax required to be withheld with
regard to the exercise of an Option under the Plan.
5. EMPLOYEES ELIGIBLE TO RECEIVE OPTIONS
(a) The Board, upon the recommendation of the Committee, shall from time to
time in its discretion select the employees to whom the options shall
be granted from among the key employees of the Corporation and any
Subsidiary.
(b) Members of the Board of Directors who are not regular salaried
employees of the Corporation or a Subsidiary shall not be eligible to
receive Options.
(c) An individual employee may receive more than one Option.
6. OPTION AGREEMENT
(a) No Option shall be exercised by an Optionee unless he or she
shall have executed and delivered an Option Agreement.
(b) Appropriate officers of the Corporation are hereby authorized to
execute and deliver Option Agreements in the name of the
Corporation as directed from time to time by the Board.
7. GRANTS OF OPTIONS
(a) The Board, acting upon the recommendation of the Committee, shall
in it discretion determine the time or times when Options shall
be granted and the number of shares of Common Stock to be subject
to each Option.
(b) The aggregate fair market value (determined as of the date the
Option is granted) of the stock with respect to which Incentive
Stock Options are exercisable for the first time by an individual
during any calendar year (under all stock option plans of the
Corporation and its Subsidiaries) shall not exceed $100,000.00.
(c) No Incentive Stock Option shall be granted to an employee who, at
the time the Option is granted, owns (within the meaning of
Section 422(b)(6) of the code) stock possessing more than ten
percent of the total combined voting power of all classes of
stock of the Corporation unless the following requirements are
satisfied: (i) notwithstanding the provisions of Section 8, the
purchase price for each share of common stock subject to an
Option shall be at least 110 percent of the fair market value of
the Common Stock subject to the Option at the time the Option is
granted; and (ii) the Option is not exercisable after the
expiration of five (5) years from the date such Option is
granted.
(d) The Board may in its discretion grant Options that are not
intended to constitute Incentive Stock Options.
(e) Each Option shall be evidenced by an Option Agreement, in such
form as the Board shall from time to time approve, which shall
state the terms and conditions of the Option in accordance with
the Plan, and also shall contain such additional provisions as
may be necessary or appropriate under applicable laws,
regulations, and rules.
8. OPTION PRICE
Subject to Section 7(c), the purchase price for each share of Common
Stock subject to an Option shall be one hundred percent (100%) of the
Fair Market Value of the Common Stock on the date the Option is granted
provided, however, that the purchase price shall not be less than the
par value of the Common Stock which is the subject of the Option.
9. OPTION PERIOD; EXERCISE RIGHTS
a) Each Option shall be for such term as the Board shall determine,
but not more than ten years from the date it is granted, and
shall be subject to earlier termination as provided in Section
1O.
b) Options shall be exercisable in accordance with the following
schedule: 25% one day after date of grant; 25% one day after
first year anniversary of date of grant; 25% one day after second
year anniversary of date of grant; 25% one day after third year
anniversary of date of grant.
c) Upon the purchase of shares of Common Stock under an Option, the
Stock certificate or certificates may, at the request of the
purchaser, be issued in his name and the name of another person
as joint tenants with the right of survivorship.
d) The exercise of each Option granted under the Plan shall be subject to
the condition that if at any time the Corporation shall determine in
its discretion that the listing, registration, or qualification of any
shares of Common Stock otherwise deliverable upon such exercise upon
any securities exchange or under any State or Federal law, or the
consent or approval of any regulatory body, is necessary or desirable
as a condition of, or in connection with, such exercise or the delivery
or purchase of shares thereunder, then in any such event such exercise
shall not be effective unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Corporation. Any such
postponement shall not extend the time within which the Option may be
exercised; and neither the Corporation nor its directors or officers
shall have any obligation or liability to the Optionee or to a
Beneficiary with respect to any shares of Common Stock as to which the
Option shall lapse because of such postponement.
10. EXERCISE RIGHTS UPON TERMINATION OF EMPLOYMENT
(a) Retirement
Except as provided in paragraph (e) of this section 10, if an Optionee
retires under a retirement or pension plan of the Corporation or of a
Subsidiary, the Optionee's Option shall terminate one year after the
date of such retirement but in no event later than the date on which it
would have expired if the Optionee had not retired, provided, however,
that if the Option is exercised later than three months from the date
of such retirement such Option shall not constitute an Incentive Stock
Option. During such period the Optionee may exercise the Option in
whole or in part notwithstanding the limitations of Section 9(b) or any
limitation that may have been set by the Board pursuant thereto.
(b) Disability
Except as provided in paragraph (e) of this section 10, if an Optionee
becomes disabled, the Optionee may exercise the Option (i) within one
year after the date of Disability, but in no event later than the date
on which it would have expired if the Optionee had not become disabled,
or (ii) within such other period, not exceeding three years after the
date of Disability, as shall be prescribed in the Option Agreement;
provided, however, that if the Option is exercised later than one year
after the date of Disability, it shall not constitute an Incentive
Stock Option. During such period the Optionee may exercise the Option
in whole or in part notwithstanding the limitations of Section 9(b) or
any limitation that may have been set by the Board pursuant thereto.
(c) Death
If an Optionee dies during a period in which he or she is entitled to
exercise an Option (including the period referred to in paragraphs
(a),(b),(d),and (e)of this Section 1O), the Option may be exercised at
any time within one year from the date of the Optionee's death, but in
no event later than the date on which it would have expired if the
Optionee had lived, by the Optionee's Beneficiary, in whole or in part
notwithstanding the limitations of Section 9(b) or any limitation that
may have been set by the Board pursuant thereto.
(d) Termination of Employment for Any Other Reason
Except as provided in paragraph (e) of this section 10, if an Optionee
ceases to be employed by the Corporation or a Subsidiary for any reason
other than retirement, disability, or death, the Optionee's Option
shall terminate 30 days after the date of such cessation of employment,
but in no event later than the date on which it would have expired if
such cessation of employment had not occurred. During such period the
option may be exercised only to the extent that the Optionee was
entitled to do so under Section 9(b) at the date of cessation of
employment unless the Board, in its sole and nonreviewable discretion,
permits exercise of the Option to a greater extent. Except to the
extent required by law, the employment of an Optionee shall not be
deemed to have ceased upon his or her absence from the Corporation or a
Subsidiary on a leave of absence granted in accordance with the usual
procedure of the Corporation or Subsidiary.
(e) Notwithstanding any language of the Plan to the contrary, if an
Optionee ceases to be employed by the Corporation or a Subsidiary and
becomes, or continues to be, a member of the Board of Directors prior
to the time the Optionee's Option(s) would have otherwise expired
pursuant to this Section 10, the Optionee's Option(s) shall continue to
vest in accordance with Section 8(b) hereof and shall continue to be
exercisable for the remainder of the term of the Option(s); provided,
that, if an Optionee described in this Section 10(e) ceases to be a
member of the Board of Directors for any reason, the Optionee's
Option(s) shall terminate in accordance with the provisions of Section
2.4(a) of the Amended and Restated Acme United Corporation Non-Salaried
Director Stock Option Plan. Any Option which is not exercised by the
Optionee within the three-month period immediately following the
Optionee's termination of employment, or, in the case of termination of
employment on account of Disability, within one year after the date of
Disability, shall cease to be an Incentive Stock Option.
11. METHOD OF EXERCISE
(a) Each exercise of an Option shall be by written notice to the
Secretary of the Corporation, stating the number of shares to be
purchased. An Option may be exercised with respect to all, or any
part of, the Shares of Common Stock as to which it is exercisable
at the time.
(b) The purchase price of the shares being purchased shall be paid in
full at the time the Option is exercised. Such payment shall be
made in cash in United States currency.
12. NONTRANSFIERABILITY OF OPTIONS
Each Option shall be nonassignable and nontransferable by the Optionee
other than by will or by the laws of descent and distribution. Each Option
shall be exercisable during the Optionee's lifetime only by the Optionee.
13. SHAREHOLDER RIGHTS
No person shall have any rights of a shareholder by virtue of an Option
except with respect to shares actually issued to him and registered on the
transfer books of the Corporation, and the issuance of shares shall confer
no retroactive right to dividends.
14. USE OF PROCEEDS
The proceeds received by the Corporation from the sale by it of shares of
Common Stock to persons exercising an Option pursuant to the Plan will be
used for the general purposes of the Corporation or any Subsidiary.
15. GENERAL PROVISIONS
The grant of an Option in any year shall not give the Optionee any right to
similar grants in future years or any right to be retained in the employ of
the Corporation or any Subsidiary.
16. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
If there is a change in the number or kind of outstanding shares of the
Corporation's stock by reason of a stock dividend, stock split,
recapitalization, merger, consolidation, combination, or other similar
event, appropriate adjustments shall be made by the Board to the number and
kind of shares subject to the Plan, the number and kind of shares under
Options then outstanding, the maximum number of shares available for
Options or the Option Price and other relevant provisions.
17. EFFECT OF MERGER OR OTHER REORGANIZATION
If the Corporation shall be the surviving corporation in a merger or other
reorganization, an Option shall extend to stock and securities of the
Corporation to the same extent that a holder of that number of Shares
immediately before the merger or consolidation corresponding to the number
of Shares covered by the Option would be entitled to have or obtain stock
and securities of the Corporation under the terms of the merger or
consolidation. If the Corporation dissolves, sells substantially all of its
assets, is acquired in a stock for stock or securities exchange, or is a
party to a merger or other reorganization in which it is not the surviving
corporation, then each Option shall be exercisable within the period of
sixty (60) days commencing upon the date of the action of the shareholders
(or the Board if shareholders' action is not required) is taken to approve
the transaction and upon the expiration of that period all Options and all
rights thereto shall automatically terminate.
18. TERMINATION; AMMENDMENTS
(a) The Board may at any time terminate the Plan. Unless the Plan shall
previously have been terminated by the Board, it shall terminate on
February 26, 2012. No Option may be granted after such termination.
(b) The Board may at any time or times amend the Plan or amend any
outstanding Option for the purpose of satisfying the requirements of
any changes in applicable laws or regulations or for any other purpose
which at the time may be permitted by law.
(c) Except as provided in Section 16, no such amendment shall, without the
approval of the shareholders of the Corporation: (i) increase the
maximum number of shares of Common Stock for which the Options may be
granted under the Plan; (ii) reduce the Option price of outstanding
Options; (iii) extend the period during, which Options may be granted;
(iv) materially increase in any other way the benefits accruing to
Optionees; or (v) change the class of persons eligible to be
Optionees.
(d) No termination or amendment of the Plan shall without the consent of
an Optionee or Beneficiary, adversely affect the Optionee's or
Beneficiary's right under any Option previously granted, but it shall
be conclusively presumed that any adjustment for changes in
capitalization in accordance with Section 16 hereof does not adversely
affect any such right.
19. EFFECTIVE DATE
The effective date of the Plan is February 26, 2002.
(As amended April 25, 2005).
20. GOVERNING LAW
The Plan shall be construed and its provisions enforced and
administered in accordance with and under the laws of Connecticut
except to the extent that such laws may be superseded by any Federal
law.
Exhibit 4.6
STOCK OPTION AGREEMENT
ACME UNITED CORPORATION 2002 STOCK OPTION PLAN
A. A STOCK OPTION for a total of ______ shares of common Stock, par
value $2.50, of Acme United Corporation, a Connecticut corporation (herein the
"Company"), is hereby granted to _______________ (herein the "Optionee"),
subject in all respects to the terms and provisions of the 2002 Acme United
Corporation Stock Option Plan, (the "Plan"), dated February 26, 2002, as amended
through April 25, 2005, which has been adopted by the Company and which is
incorporated herein by reference.
B. The option price per share as determined by the Stock Option Plan
Committee of the Company is _______________ ($___) per share.
C. This Option may not be exercised if the issuance of shares of Common
Stock of the Company upon such exercise would constitute a violation of any
applicable securities or other law or valid regulation. The Optionee, as a
condition to his exercise of this Option, shall represent to the Company that
the shares of Common Stock of the Company that he acquires under this Option are
being acquired for him for investment and not with a present view to
distribution or resale, unless counsel for the Company is then of the opinion
that such a representation is not required under the Securities Act of 1933 or
any other applicable law, regulation or rule of any governmental agency.
D. This Option may not be transferred in any manner otherwise than by
will or the laws of descent and distribution, and may be exercised during the
lifetime of the Optionee only by him. The terms of this Option shall be binding
upon the executors, administrators, heirs, successors, and assigns of the
Optionee.
E. This Option may not be exercised more than ten (10) years from the
date of its grant, and may be exercised during such term only in accordance with
the terms of the Plan.
F. This Option is intended to be an Incentive Stock Option pursuant to
the terms of the Plan and is, accordingly, subject to the further limitations
set forth in the Plan applicable to Incentive Stock Options.
G. This Option is further subject to the following limitations on
exercise by the Optionee:
1. With respect to 25% of the shares (_______) of Common
Stock, the Optionee's right of exercise under this Option shall be subject only
to the general limitations set forth in the Plan with respect to all stock
options which are intended to be Incentive Stock Options.
2. With respect to a further 25% of the shares (_____) of
Common Stock, in addition to the general limitations set forth in the plan, the
Optionee shall in no event have any right of exercise until ________. In the
event the Optionee is not an employee of the Company on _________, his right of
exercise with respect to said shares and with respect to the shares referred to
in subsections 3 and 4 of this Section, shall immediately lapse and shall be of
no further force or effect.
3. With respect to a further 25% of the shares (_____) of
Common Stock, in additional to the general limitations set forth in the Plan,
the Optionee shall in any event have no right of exercise until ___________. In
the event the Optionee is not an employee of the Company on __________, his
right of exercise with respect to said shares and with respect to the shares
referred to in subsection 4 of this Section, shall immediately lapse and shall
be of no further force or effect.
4. With respect to the balance of 25% of the shares (______)
of Common Stock, in addition to the general limitations set forth in the Plan,
the Optionee shall in any event have no right of exercise until ___________. In
the event the Optionee is not an employee of the Company on ________, his right
of exercise with respect to said shares shall immediately lapse and shall be of
no further force or effect.
Dated as of: _____________
ACME UNITED CORPORATION
By:
Name: Walter Johnsen
Title: President & CEO
ATTEST:
Paul G. Driscoll, Secretary
The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is annexed hereto, and represents that he is familiar with the terms and
provision thereof. The Optionee hereby accepts this Option subject to all the
terms and provisions of the Plan. The Optionee hereby agrees to accept as
binding, conclusive, and final all decisions and interpretations of the Board of
Directors and, where applicable, the Compensation Committee, upon any questions
arising under the Plan. As a condition to the issuance of shares of Common Stock
of the Company under this Option, the Optionee authorizes the Company to
withhold in accordance with applicable law from any regular cash compensation
payable to him any taxes required to be withheld by the Company or agrees to
remit to the Company at the time of any exercise of this Option any taxes
required to be withheld by the Company, under Federal, State or Local law or
applicable law of any other jurisdiction as a result of his exercise of this
Option. The Optionee further acknowledges that under certain circumstances,
either pursuant to the terms of the Plan or pursuant to the Internal Revenue
Code, this Option may cease to be an Incentive Stock Option, in which event the
Optionee will be subject to taxation in a manner different from that provided
for Incentive Stock Options.
Dated: ____________________, 200__.
Optionee ______________
[On Brody, Wilkinson and Ober, P.C. Letterhead]
July 8, 2005
Board of Directors
Acme United Corporation
1931 Black Rock Turnpike
Fairfield, CT 06825
Dear Sirs and Madam:
We are corporate general counsel for Acme United Corporation (the
"Company"). We are delivering this opinion in connection with the filing with
the Securities and Exchange Commission (the "Commission") on or about the date
hereof of a Form S-8 Registration Statement (the "Registration Statement")
relating to (i) 280,938 shares of Common Stock, par value $2.50 per share, of
the Company (the "Common Stock") to be offered pursuant to the Acme United
Corporation 2002 Employee Stock Option Plan, as amended (the "Employee Plan");
and (ii) 50,000 shares of Common Stock to be offered pursuant to the Acme United
Corporation 2005 Non-Salaried Director Stock Option Plan (the "Director Plan")
(both the Employee Plan and the Director Plan collectively referred to herein as
the "Plans").
We have examined and are familiar with (i) the Restated Certificate of
Incorporation and the Bylaws of the Company; (ii) the corporate proceedings
approving the Employee Plan, as amended, and the Director Plan; (iii) the Plans;
and (iv) such other documents and instruments as we have considered necessary
for the purposes of the opinions hereinafter set forth.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all submitted to us as copies (including telecopies). This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation under the laws of the State of
Connecticut.
2. Upon issuance and delivery of the shares of Common Stock
pursuant to the Plans after the date hereof and payment to the
Company of the option price for the Common Stock, such shares
will be validly issued, fully paid, and nonassessable.
This opinion letter is provided to you for your benefit solely with
regard to the Registration Statement, may be relied upon by you only in
connection with the Registration Statement, and may not
Board of Directors, Acme United Corporation
July 8, 2005
Page 2
be relied upon by any other person or for any other purpose without our prior
written consent.
We are members of the bar of the State of Connecticut and some of us
are members of other jurisdictions not relevant herein. In connection herewith,
we express no opinion on the laws of any jurisdiction other than the laws of the
State of Connecticut.
We hereby consent to the use of this opinion and our names in
connection with the Registration Statement filed with the Commission to register
the shares of Common Stock to be offered as aforesaid.
Very truly yours,
BRODY, WILKINSON AND OBER, P.C.
By: /s/ James E. Rice
------------------------------
James E. Rice, Vice President
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Acme United Corporation 2005 Non-Salaried
Director Stock Option Plan and the Acme United Corporation 2002 Employee Stock
Option Plan, as amended, of our report dated February 14, 2005, with respect to
the consolidated financial statements and schedule of Acme United Corporation
included in its Annual Report (Form 10-K) for the year ended December 31, 2004,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
July 1, 2005